WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE?

January 23, 2012 § 3 Comments

Who gets to participate in a grandparent visitation case?

MCA § 93-16-5 states:

“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]

MCA § 93-15-107(1), dealing with termination of parental rights, states:

“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”

MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.

From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.

Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.

ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION

November 21, 2011 § 1 Comment

We’ve talked here before about the proper procedure to withdraw from representing a client.

It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.

The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.

On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.

On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.

Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.

The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”

The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:

” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”

In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.

The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.

WHAT DOES IT TAKE TO SATISFY THE DILIGENT INQUIRY REQUIREMENT OF MRCP 4?

August 16, 2011 § 2 Comments

We’ve talked here, here and here about MRCP 4 and its requirements for obtaining process by publication. The prerequisite to any process by publication is “diligent inquiry” to discover whether the party is to be found in Mississippi, and, if not, her post office address.

No process by publication can issue until there is an affidavit filed stating that diligent inquiry has been made. The one who claims to have made the inquiry is required to testify to the efforts involved. It is in the court’s discretion to determine whether the inquiry was indeed diligent.

So what exactly is diligent inquiry? To what extent is a party required to search out the whereabouts of the opposing party? I will confess to a certain degree of inconsistency on this issue on my part, due primarily to the fact that in Mississippi we do not have a template of authority or guidelines to go by. I do always question the witness about measures taken, and I am usually satisfied that he or she has done all that can be done.

Recently, it came to my attention that Florida has a form certificate of diligent inquiry that is required in all such cases. The affiant must check all of the categories of effort that apply. Here are the guts of the Florida certificate:

  • United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
  • Last known employment of respondent, including name and address of employer. You should also ask for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then for any addresses to which any pension or plan payment is and/or has been mailed.
  • Unions from which respondent may have worked or that governed particular trade or craft.
  • Regulatory agencies, including professional or occupational licensing.
  • Names and addresses of relatives and contacts with those relatives, and inquiry as to respondent’s last known address. You are to follow up any leads of any addresses where respondent may have moved. Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces, nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
  • Information about the respondent’s possible death and, if dead, the date and location of the death.
  • Telephone listings in the last known locations of respondent’s residence.
  • Internet at http://www.switchboard.com or other internet people finder.
  • Law enforcement arrest and/or criminal records in the last known residential area of respondent.
  • Highway Patrol records in the state of respondent’s last known address.
  • Department of Motor Vehicle records in the state of respondent’s last known address.
  • Department of Corrections records in the state of respondent’s last known address.
  • Title IV-D (child support enforcement) agency records in the state of respondent’s last known address.
  • Hospitals in the last known area of respondent’s residence.
  • Utility companies, which include water, sewer, cable TV, and electric, in the last known area of respondent’s residence.
  • Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about respondent.

Some of these measures seem somewhat extravagant to me; a Freedom of Information Act request, for example, seems a bit much. Certain other listed measures would be futile due to privacy and HIPAA concerns, in my opinion.

The list, though, does have much to commend it in that it illustrates the extent of information available to find someone. In the era of internet, with Google and the like, the old “I asked his momma and she doesn’t know where he is” just doesn’t cut it anymore. The more extensive the search, the more different measures employed, the more likely it is that the court will find the effort to have been diligent.

I heard an uncontested divorce a while back in which the plaintiff had published process based on a claim that she did not know where the defendant was, and was not to be found in Mississippi. She testified about all the relatives she had talked to who claimed not to know where he was, either. In the course of her testimony, she let slip that the last she had known he was in prison in Texas. I interrupted and asked how long his prison term was, and she responded that he should still be there because he had been sentenced to something like 20 years. I pointed out to the attorney that of all people on the planet a prisoner should be among the easiest to locate, and I continued the hearing to a later date for that purpose. The attorney easily located the man on the internet, and she and her client returned to court a couple of months later and proceeded on personal process. 

My suggestion is that you don’t file that diligent inquiry affidavit unless and until you are satisfied that your client has, indeed, made a bona fide effort to locate the other party. You may wind up doing some of the work yourself.

PROCESS F*A*I*L

August 15, 2011 § Leave a comment

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

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

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

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

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

The COA reversed, and here are the important points:

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

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

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

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

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

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

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

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

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

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

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

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

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

PUBLICATION PROCESS: THE NIGHTMARE CONTINUES

July 18, 2011 § 1 Comment

Thank goodness most, if not all, lawyers are paragons of mental health.  Otherwise they would regularly be reduced to quivering, sobbing hulks curled in a fetal position on the office hook rug, terrorized by the veritable panoply of unseen legal bugaboos that can bite them, sometimes fatally, in the butt.  These legal viruses are not mere phantasms; they infest your files, lurking there invisible like the dust mites that feast on your body while you sleep.  <Shiver>

MRCP 4(c)(4)

I have already warned you about the dangerous propensity of MRCP 4 publication process to devour entire cases whole. It’s a rule that can transform your case from a delightful, playful puppy dog into an undead, zombie-esque creature that will turn on you and try to drink your blood and eat your skin.

Just when you were growing comfortable with your new-found awareness of Rule 4’s parlous proclivities, here comes something else to worry about.

It’s Article 6, §169 of the Mississippi Constitution, which is entitled, “Style of Process.” It states in pertinent part: “The style of all process shall be ‘The State of Mississippi …’ ”

Given the fact that the MSSC and COA have strictly interpreted Rule 4 as it applies to publication, I think you would be wise to look at your process forms and make sure that every one includes THE STATE OF MISSISSIPPI. Look at MRCP Forms 1C, 1D and 1DD. Notice that each includes the style of the case, which includes the court, county and state, and the language THE STATE OF MISSISSIPPI. Redundant? Perhaps. An additional line you have to pay for? Absolutely. Necessary? You bet; it’s required by our state constitution!

Chancellor George Warner consistently found process inadequate that did not include the requisite language. Over the years, we have grown less vigilant, and now you can find process in the newspaper that lacks the proper style. I predict that someone will raise this point on appeal and that the appellate court will say, “Sorry, you goofed up and violated the Mississippi Constitution; your process is no good, the court had no jurisdiction, and this case is reversed.”

Now uncurl yourself from that fetal ball, brush yourself off, and start fixing your forms. THE STATE OF MISSISSIPPI. Add the words in where they belong. Take pride in the fact that you have avoided being a victim of this peril. And rest easy for now … until the next legal plague that will try to drink your blood and eat your skin.

                                                

Thanks to attorney Leonard Cobb.

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]

May 11, 2011 § 4 Comments

When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal?  Do you need to track down a judge for an emergency hearing on the objection?  What do you need to do to protect your client after you file the objection?

Nothing.  MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action.  It’s right there in the rule, in black and white.

This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point.  Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about.  I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.

Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department.  No one appeared for the defendant agency.  That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.”  Really?  Didn’t know that.

In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line.  One thing she made us do was to keep an open dictionary on the desk before us as we read a book.  Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps.  At first I complied to avoid the pain.  Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.

Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection.  And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it.  Okay, I’m kidding about that last part.

Of course, my point applies to the statutes and cases, too.  How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship?  How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?

I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing.  Which category will you place yourself in?

MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

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

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

Here are some tips to make your adoptions succesful:

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

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

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

AN OLD LAWSUIT SCAM POPS UP AGAIN

March 17, 2011 § 1 Comment

I am sure you’re well acquainted with the lengthy law-related scam list.  You’ve probably gotten emails from the infamous Nigerian money-laundering operation (a Meridian millionaire was actually burned for $49,000 some years ago in this one), or the Indonesian entrepreneurs who say they need you to represent them but really only want to get into your trust account.  And so on.  Philip Thomas of Jackson weighs in about scams directed at lawyers on his blog here.

Recently an old law-related scam resurfaced targeting non-lawyers.  It typically arrives via e-mail or telephone message and goes something like this:

“I am calling (or emailing) you about lawsuit number 8045-SA277.  Our client has obtained a judgment against you (generally for unpaid magazine subscriptions), and we are giving you the opportunity to settle this matter.  The judgment is in the sum of $1,650, but you can settle this matter by remitting only $399 before noon tomorrow.  If you do not, we will proceed to collection.”

Of course, there is no lawsuit, and there is no judgment, collectible or otherwise.  Some of the messages are from a Carol Klein, or Christine Walker or Carol Grimes.  Laughably, some of the male callers identify themselves as “Christine Walker.”

Some callers/emailers ask the recipient to “confirm” their bank account number or social security number “for security purposes.”  Of course, they don’t already have that info, but will once the victim “confirms” it by supplying it.

Some people report receiving calls at home or even at work, and the callers are rude, threatening and abusive.

One of my former clients called me about this and sent this phone number, 888-243-6571, which he googled.  You can click the link and read about others’ experiences.  Note that the phone numbers change frequently.  From the dates on some of the entries, it looks like this fraud has been around for years, but it is making a resurgence in this part of the world.

This is a heads up in the event that any of your clients call you about this.  If they are going to be sued, they will receive process or at a minimum certified mail, and they should never give out credit card or bank account info or social security numbers over the phone or via email for any reason, or send money without advice of an attorney.

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