The 4(h) Club
July 24, 2014 § Leave a comment
No, I’m not talking about raising livestock and watermelons. I’m talking about how you can get clubbed by operation of MRCP 4(h), which can raise some nasty lumps.
R 4(h) states:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
The obvious peril of this rule is operation of the statute of limitations (SOL). If your complaint is dismissed and the statute runs before you can get it refiled, your proverbial goose is cooked. But it is equally parboiled if you fail to effect process within the 120-day period. Here’s what the MSSC said in the case of Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss. 2002):
Filing a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires. Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss.1996). A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper. Id. at 1244; Brumfield v. Lowe, 744 So. 2d 383, 387 (Miss. Ct. App.1999). The plaintiff bears the burden of establishing good cause. M.R.C.P. 4(h).
That language is quoted in the recent MSSC decision in Lewis Entertainment Inc. d/b/a Extreme Skate Zone v. Brady, decided July 17, 2014.
In that case, the plaintiffs had failed to get process on Lewis within the 120 days, and the SOL ran the day after the 120-day period ended. The court noted that, under the rule, the only way for the plaintiffs to keep their action alive was to show good cause for failure to serve Lewis within the 120 days.Justice Lamar, for the unanimous court, set out what constitutes good cause:
¶9. To establish good cause, the plaintiff has the burden to show “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules does not suffice.” When making a good-cause determination, the following factors should be considered:
a. the conduct of a third person, typically the process server,
b. the defendant has evaded service of the process or engaged in misleading conduct,
c. the plaintiff acted diligently in trying to effect service or there are understandable mitigating circumstances, or
d. the plaintiff is proceeding pro se or in forma pauperis.
The Bradys are not proceeding pro se or in forma pauperis and nothing in the record suggests that their failure to timely serve Lewis is attributable to the conduct of a third person or to Lewis. The Bradys simply claim their failure to serve Lewis is justified by their attempts to serve Oak Grove. We disagree.
¶10. The Bradys waited until the last day of the 120-day period to attempt to serve Oak Grove. On that day, their process server learned that the Bradys had named the wrong defendant, but, instead of identifying the correct defendant, the Bradys continued to attempt service on the wrong party for two weeks. The Bradys also failed to request additional time to serve process until seventy days after the 120-day period expired and three weeks after they were informed that their case was going to be dismissed. And, even after they filed a motion for additional time, they failed to set it for hearing and have yet to name the proper defendant.
The court went on to hold that those facts did not constitute good cause that would save the plaintiffs’ case.
Lewis is an appeal from a county court case. In chancery, we do not routinely deal with statutes of limitation like they do in county and circuit courts. But for those chancery matters that do involve SOL, R 4(h) is as applicable here as it is in the law courts.
Beware of the club.
Perfecting Your Appeal
July 22, 2014 § Leave a comment
I think there is considerable confusion among attorneys over how to perfect an appeal and what are the deadlines that apply.
Jane Tucker has an excellent post, Perfecting Your Appeal, that sets out the process in 1-2-3 order, in about as clear a fashion as can be done. I recommend that you read it and have it handy for your next appeal.
From motions and orders of the MSSC that cross my desk, I have seen confusion over appeal bonds, deadlines, deposits for record costs, and designation of record. It’s really not that complicated, though; the MRAP applies, and the procedures are there.
Two final points … (a) MRAP 24(b) requires that the trial judge be served with a copy of every brief; in practice, this is not being done; and (b) If you file a petition for an interlocutory appeal, it would be courteous and a singular mark of your professionalism if you would simultaneously serve a copy on your trial judge because she is permitted to file a response within 14 days of your filing, per MRAP 5(b).
I don’t usually address appeal procedures here because I try to focus on chancery trial practice. With the apparent confusion I have seen among some lawyers in getting their appeals aloft, I thought this might be helpful.
Ravenstein: Sizzle or Fizzle?
July 21, 2014 § 7 Comments
I vote fizzle.
Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”
To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.
John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.
When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.
When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.
The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.
The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.
On the issue of the application of the code sections cited above, the court said:
¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue. We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case. See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).
Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.
Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.
I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.
Maybe when the right case goes up Justice King will write the majority opinion.
New CLE Requirement for New Lawyers
July 18, 2014 § 6 Comments
The MSSC yesterday published a new CLE requirement for new lawyers. The change takes effect July 1, 2015.
The change will mean that newly-admitted lawyers will be required to undergo a new-lawyer program to be created and administered by the Commision on Mandatory Legal Education. Currently, lawyers are exempt from CLE requirements in their first year of practice.
This is the new language:
Each attorney newly licensed to practice law in the State of Mississippi, from and after August 1, 2015, shall, by the conclusion of the second CLE year occurring after their date of admission to The Mississippi Bar, attend or complete a new-lawyer program approved by the Commission on Continuing Legal Education, which shall be comprised of a total of twelve (12) actual hours of CLE to include six (6) hours of basic skills training and six (6) hours of ethics/professionalism. Completion of the new-lawyer program shall satisfy the requirement of subsection (a) of this Rule for such newly licensed attorney for both the CLE year of admission and the next succeeding CLE year.
Attorneys newly licensed to practice law in the State of Mississippi, but previously admitted to the practice of law in another state, may be exempted from completing the six (6) hour basic skills training component of the new-lawyer program. To qualify for this exemption, within three (3) months of admission to The Mississippi Bar, the newly licensed attorney must submit an affidavit to the Commission on Continuing Legal Education, providing the date or dates of admission in every other state in which the attorney is admitted to practice and a declaration that the attorney has been actively engaged in the practice of law for five (5) or more years immediately prior to admission in this state. Upon submission of a timely affidavit, the newly licensed attorney shall be required to complete the six (6) hour ethics/professionalism component of the new-lawyer program within nine (9) months, after which time the attorney will be required to comply with the annual CLE requirement prescribed in Rule 3(a). Attorneys eligible for the exemption prescribed herein who fail to timely submit the required affidavit shall be required to complete the new-lawyer program in its entirety.
I give the concept an A+. Especially the ethics and professionalism component. I’ll withhold grading execution until I see the curriculum and the results.
But I hope new lawyers won’t think this few hours of classroom time will season them somehow into competence.
It takes a lot of hard work to develop a person into a lawyer. A law degree and admission to the bar are merely your permission to commence that process. And it takes help; you can only do it imperfectly on your own.
There’s a clear difference between a young lawyer who has had the benefit of mentoring and one who has not. The problem is that there are many young lawyers who never have the benefit of mentoring. Some are merely “thrown into the fire” by lawyers in their law firm because that’s how they themselves learned, or out of indifference, or in the mistaken belief that the youngster learned how to practice law in law school. Some are on their own and never seek out a mentor, and no one ever offers. Some think they know it all and do not need a guiding hand. All of those approaches are misguided and only render the young lawyer’s growth process either far more difficult or even doomed, because practicing law nowadays is far too complicated to figure out without help.
Can a few hours of lecture and a sheaf of forms substitute for wise, gray-haired advice and assistance? I insist not.
If you are a young lawyer feeling your way awkwardly along the foggy, snare-laden landscape of the law, I encourage you to seek out an experienced, ethical lawyer and make arrangements for him or her to give you advice and guidance on how to practice the law you learned about in law school. Offer to carry his or her briefcase to trial to see how it is done. Ask about what it takes to do a title opinion. Seek out that wise counselor to help you resolve ethical and practical questions that come up for which the answers are not immediately obvious to you.
Law school introduces you to how to think like a lawyer (analytical thinking), the basics of the law, and how to find the law. That’s about 10% of what is involved in the practice of law. The other 90% you will have to master through your own efforts and with help.
So I look at this new requirement as a positive step. But not a substitute for the strenuous process of becoming a lawyer.
How Much to Pay Your Witnesses
July 15, 2014 § 9 Comments
Of course you can’t pay witnesses for their testimony (except experts, sortof), but you are required by MRCP 45(c)(1) to pay “to a non-party witness at the time of service [of a subpoena] the fee for one day’s attendance plus mileage allowed by law.” That payment may be waived by court order for indigence, and is not required of the State of Mississippi.
The witness fee is set out in MCA 25-7-47, which has provided that the witness is to be paid $1.50 per day and five cents per mile for travel to and from the courthouse “by the nearest route,” plus tolls and ferriage.
The usual practice in this district up to now for those who have not ignored the requirement is to issue the subpoena and tender a check for some nominal sum, like $2.00, to local witnesses.
The cost of witnesses, however, has gone up significantly, effective July 1, 2014. SB 2676, amends MCA 25-7-47, as follows:
Witnesses in the county, circuit * * *, chancery and justice courts shall receive * * * the same pay per day as is set by the board of supervisors under Section 25-7-61 for service as a juror plus mileage as authorized under Section 25-3-41 for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but * * * a charge shall not be made for mileage except that traveled in this state. * * * Witnesses in all other cases shall receive the same compensation as they receive before the circuit court. It shall not be necessary to issue subpoenas for police officers as witnesses in city cases of cities having a population of more than ten thousand (10,000) according to the federal census of 1930; and * * * officers, when used as witnesses in * * * cases, are not to be allowed witness fees. A law enforcement officer who has retired or otherwise ceased employment as a law enforcement officer but who is required to testify in any case based on matters that arose during the course of the officer’s employment shall be entitled to the same compensation and expenses from the former employing law enforcement agency as an officer on active duty under the same circumstances.
So let’s try to figure this out:
- First, you have to look at MCA 25-7-61 to determine what “pay per day as is set by the board of supervisors … for service as a juror …” To arrive at that figure, you’ll have to consult with your board of supervisors, because the statute allows them to set the fee between $25 and $40 per day.
- Second, you will have to read and decipher what is the allowable mileage reimbursement under MCA 25-3-41. Good luck with that. If you conclude as I do that the applicable rate under MCA 25-7-41 is the county reimbursement rate, then MCA 25-3-41(2) applies, and it allows a mere twenty cents per mile unless the board of supervisors has adopted the mileage reimbursement rate allowable for state employees.
Bottom line is that your per diem cost to obtain a witness’s attendance has gone up from $1.50 to somewhere around $25 – $40 per day of attendance. That does not include mileage, which must be computed in addition to the per diem. I doubt that there are any boards of supervisors clinging to the antiquated twenty-cents mileage rate. The state mileage reimbursement rate now is $.565 per mile. If your supervisors have adopted the prevailing state rate, then you are looking at paying your witnesses more than 10 1/2 times more than the current five cents per mile statutory rate.
Hypothetically, then, if your non-party witness has to travel 17 miles to court, and your board of supervisors has adopted $40 a day for jury pay and mileage at the state rate, and there are no ferries or tolls to pay, then you now have to tender that witness $59.21 ($40 per diem, plus 34 mi. x $.565) each day for attendance. The cost before the amendment would have been a mere $3.20 ($1.50 per diem, plus 34 mi. x $.05).
For lawyers who are going to observe the requirement of R45, this should have a dampening effect on the vexatious practice of issuing subpoenas for 30 witnesses for trial and calling only four. It should also discourage those lawyers who like to subpoena a witness aligned with the other side, and then to keep that witness waiting in the hall two, three or four days, only calling him or her for a few brief questions at the end of the trial. Both unprofessional practices will now be more expensive than one could reasonably justify to a paying client.
As I said, these new rates are in effect now, and have been since July 1, 2014.
NOTE: In East v. East, 775 So. 2d 741, 747 (Miss. Ct. App. 2000), the COA ruled that a witness who had not been tendered payment per R45 had not been properly served. Who gets to raise the issue? In Roberts, it was the witness himself who brought up the matter via ex parte communication with the judge, which the COA did not find improper. No doubt the affected witness may always raise the non-payment issue, but may a party? Stay tuned.
Thanks to Anderson for the cite to Roberts in a comment to this post.
An Effect of Affirmance
July 9, 2014 § Leave a comment
Richard Dean filed an adverse-possession lawsuit, and the chancellor found that he failed to prove his case. Dean appealed, and the COA affirmed. He then filed a petition for cert to the MSSC, which the court denied.
Not to be deterred, Dean then filed a R60(b) motion with the chancery court that had originally denied his relief. The chancellor overruled his motion, and Dean once again appealed.
The COA again affirmed, in Dean v. Slade, et al., decided April 22, 2014. Jurisdictional nerd that I am, I found the court’s discussion of the effect of affirmance on trial court jurisdiction interesting enough to share. Here is what Judge James wrote for the court:
¶7. We first question whether the chancery court had the necessary jurisdiction to entertain Dean’s motion for reconsideration. Upon Dean’s initial appeal of the chancery court’s judgment, the chancery court lost jurisdiction. See City of Cleveland v. Mid-S. Assocs. LLC, 94 So. 3d 1049, 1050 (¶4) (Miss. 2012) (Jurisdiction is transferred to the appellate court once a notice of appeal is filed.). And because we affirmed the judgment, as opposed to remanding the judgment, and the Mississippi Supreme Court denied certiorari, jurisdiction did not return to the chancery court. See id. As the Mississippi Supreme Court noted in Collins v. Acree, 614 So. 2d 391, 392 (Miss. 1993):
From time immemorial, we have adhered to the basic and elementary rule that our appellate affirmance ratifies, confirms, and declares that the trial court judgment was correct as if there had been no appeal. Upon issuance of our mandate, the trial court simply proceeds to enforce the final judgment. The execution of the mandate of this Court is purely ministerial.
Although in Collins the supreme court noted that there may be occasions when application of Rule 60(b) may be appropriate following an affirmance and issuance of a mandate, we do not find such an occasion present here. There is nothing in Dean’s motion that suggests that the judgment should be altered following affirmance by this Court and denial of certiorari by our supreme court. As we discuss below, Dean’s allegation of earwigging was litigated prior to his initial appeal, and the evidence he purports to be newly discovered is merely impeachment evidence that was discoverable prior to trial. As the supreme court has stated, “Rule 60(b) is not an escape hatch for lawyers and litigants who had procedural opportunities afforded under other rules and who[,] without cause[,] failed to pursue those procedural remedies. Rule 60(b) is designed for the extraordinary, not the commonplace.” [Sabal Corp. v.] Howell, 853 So. 2d [122,] at 124 [(Miss. Ct. App. 2003)] (¶4) (quoting Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991)) …
So you can’t create an endless loop of litigation with post-trial motions ad infinitum and absurdum.
Dean is the subject of a prior post wherein I excoriated the practice of so-called (pre-) trial briefs.
Making Amends
July 8, 2014 § 6 Comments
A recurring mistake that I see lawyers making is to file amended pleadings without complying with MRCP 15. Here’s what the rule says:
(a) Amendments. A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
and
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
So, you may amend:
- As a matter of course at any time before a responsive pleading has been served, or
- If the pleading is one to which no responsive pleading is permitted and the matter has not been set for trial, then at any time within 30 days of filing the pleading sought to be amended, or
- On whatever terms the court directs, if the court dismisses the pleading for failure to state a claim upon which relief may be granted, or
- By order of the court on a motion to amend.
Many lawyers routinely file amended pleadings whenever the spirit moves them to do so, well after conditions 1 and 2, above, have elapsed. That is wrong, and against the express language of the rule. The requirement to obtain leave of court to modify is mandatory, and a so-called amendment without court authorization is ineffective. Miss. DHS v. Guidry, 830 So.2d 628, 634-635 (Miss. 2002).
What about that language “If the pleading is one to which no responsive pleading is permitted …”? What exactly does that mean? When is a pleading ever not permitted? The COA has interpreted that language to include pleadings to which no responsive pleading is required. See, Faye v. State, 859 So.2d 393 (Miss. App. 2003). That would include most, if not all, R81 matters.
The party seeking an amendment should spell out in her motion the substance of the amendment, and the court should assign a reason why it denies the motion. Price v. Price, 430 So.2d 848 (Miss. 1983). That way a record is made. I would add to the motion language spelling out why granting it will result in no prejudice to the other side. Most lawyers attach a proposed amended pleading as an exhibit to the motion. But remember that attaching it to the motion does not mean that the pleading has been filed as a pleading. After the court grants leave to amend, the pleading must be properly filed and noticed.
Mere filing of a motion to amend does not do the job, as happened in the MSSC case McKnight v. Jenkins, handed down February 24, 2013. A post dealing with this case is here.
It’s has long been a principle of our law that amendments should be freely allowed so that cases can be presented on their merits and fully adjudicated. That does not mean, however, that anything filed in the court file is to be considered a competent amendment. If you want to amend your pleadings, you have to comply with R15, or you might wind up trying less of a case than you really wanted to try.
Fixing Your No-Show
July 2, 2014 § 5 Comments
It can happen to the most diligent lawyer. Date of the trial is mis-calendered, or failed to get calendered, or you get busy doing something else and — oops — you are a no-show when the trial is scheduled to go.
A no-show is what happened in the case of Reed v. Reed, handed down by the COA June 24, 2014.
Jimmy Reed and his lawyer did not appear at the time appointed for Jimmy’s divorce trial. Jimmy’s lawyer believed that the case would not proceed as scheduled because, at the time, the chancellor was gravely ill. The lawyer even approached the district’s other chancellor and asked him to sign a continuance order in the belief that the case had been reassigned to him. The other chancellor demurred, however, and advised the lawyer to await appointment of a special judge by the MSSC.
The ill chancellor, however, did appear on the day set for the trial, as did Jimmy’s estranged wife and her attorney. The chancellor tried unsuccessfully for an hour to contact Jimmy’s lawyer, delaying the start of the trial. When he could not make contact the judge let Mrs. Reed proceed, and he rendered a judgment granting her a divorce on terms not very favorable to Jimmy.
Jimmy’s counsel learned what had transpired the next day when he received a fax from counsel opposite. He filed a timely R59 motion, explaining the reason for the failure to appear, and attacking the judgment as inequitable. The chancellor overruled the motion, and Jimmy appealed.
Citing Lee v. Lee, 78 So.3d 326, 328 (Miss. 2012), the court noted that ” … [a] divorce judgment entered when a party fails to appear is a special kind of default judgment. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions …” Since Jimmy had done exactly that, the COA accepted the case and reversed the chancellor’s ruling because he ” … failed to support his [equitable distribution] findings with any analysis, discussion, or mention of the Ferguson factors or the evidence before him …”
A few points to take away from this case:
- If you find yourself in a no-show predicament, timely file a R59 motion and ask for rehearing. Don’t stop at explaining your unattendance; attack in the motion every aspect of the judgment. If you don’t, you will probably be barred from raising any claims of error that you did not mention in your motion.
- The ASS-U-ME principle was at work here (ask somebody; they can explain). If I were Jimmy’s lawyer, I would have prepared for trial and shown up unless I had an agreed, signed, filed order of continuance in hand. I admit that I can be obsessive-compulsive about these things, but by assuming that the case was off, Jimmy was jeopardized unnecessarily. It all turned out okay, but it took an appeal to get Jimmy back to the starting line.
- When the other side is a no-show, make sure that you put enough proof into the record (and do make a record) to support the judge’s findings. Then insist that the judge address and analyze all of the factors that apply in your particular case. Jimmy’s appeal would have been for naught had the chancellor simply analyzed the proof through the filter of the Ferguson factors.
- I think most judges give an ordinarily diligent lawyer the benefit of the doubt in these cases. Everyone can screw up occasionally. On the other hand, lawyers who are chronically late or don’t attend to their business, or who make it a habit not to show up don’t get that favorable treatment. I have no idea why the chancellor in this particular case rejected the explanation for Jimmy’s non-appearance, so I can’t say whether the benefit-of-the-doubt principle was in play.
One nice subtlety in this case is Judge Ishee’s description of Jimmy’s post-trial motion as one for “rehearing,” as opposed to “reconsideration,” as is the common term for it. You can read another post on rehearing vs. reconsideration here.
When is Temporary Relief Available in Family Law Cases?
June 18, 2014 § 5 Comments
I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?
Let’s look at family law.
Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:
The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.
Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.
Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?
It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.
But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.
I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.
Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.
Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.
Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.
When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.
I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.
This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.
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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.
The Better Chancery Practice Blog 
*POOF* MRCP’s Comments are Gone …
June 16, 2014 § 4 Comments
… to be replaced by a pared-down version. The MSSC order entered June 12, 2014, is here. The order includes the text of the new comments.
You should note that these are not posted for comment. They are posted to give notice that the deed is done. The new comments take effect July 1, 2014.
In the interest of full disclosure, I am on the committee that crafted the new comments. The goal was to eliminate archaic case citations, language that merely repeated the rule, and references to pre-rules practice that are no longer helpful or comprehensible by attorneys who have been in practice fewer than 32 years (the period of time that the MRCP has been in effect). The language of the remaining material was clarified and made gender-neutral. I can assure you that the process was thorough — it took around three years — and the discussions were intense. Every constituent group of the bar and judiciary was represented. Where it was felt that a particular comment was needed for lawyers to have a basic understanding of a rule, careful attention was give to drafting language that would elucidate the rule. Some rules that have generated a large body of case law went uncommented.
If you find this development traumatizing, I suggest you do as I will do, and keep a couple of copies of the former comments handy. You’ll never know when they just might have that wee modicum of authority that you need to tip the scales in your client’s favor.
On a related note, I have heard from several sources that there was a growing sentiment among the MSSC to do away with the comments altogether because some have tried to use comments to try to expand the meaning of the rules. This latest order seems to be a middle route.