Statutes | The Better Chancery Practice Blog

HARD GARNISHMENT LESSON FOR A JOINT ACCOUNT OWNER

May 6, 2013 § Leave a comment

Dorothy Lang and Derrick Higgins were estranged husband and wife. Despite that they were living separate and apart, they maintained two joint bank accounts at the same bank, with Dorothy continuing to use the joint savings account, and Derrick continuing to use the joint checking account.

Derrick got behind in his child support payments to another woman — to the tune of $17,000 — and DHS in April, 2010, froze both joint accounts per MCA 43-19-48, imposing a lien on the deposits. When Dorothy discovered what had happened, her attorney sent a letter to DHS in May, 2010, advising them that the funds were Dorothy’s, not Derrick’s. DHS thoughtfully responded the next day with a letter pointing out that Dorothy was required by statute to file a petition with the court if she wished to challenge the lien.

Dorothy took no action immediately, and on June 17, 2010, DHS received $3,116.69 from the two accounts, no doubt causing Dorothy some economic distress. The date of the disbursement was more than 45 days after the freeze.

Finally, in September, 2010, Dorothy got around to filing a contest to the lien, and, at an evidentiary hearing, produced proof that most of the money seized was, indeed, hers, and not Derrick’s. The chancellor ordered DHS to refund Dorothy $2,000 of the money, and DHS appealed.

In DHS v. Lang, handed down by the COA on April 23, 2013, the COA reversed and rendered. Judge Fair’s opinion for a unanimous court, explained:

¶8. … [A]lthough the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam. Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.

¶9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So. 2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debtor’s ownership of the funds.” Delta, 547 So. 2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.

¶10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.

The court then turned to the question whether Dorothy’s letter to DHS or her petition filed nearly three months after the order disbursing funds was effective to regain her funds. The COA answered “no”:

¶12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061 (Miss. Ct. App. 2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So. 2d 320, 322 (Miss. 1981)).

¶13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance [footnote omitted]. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So. 2d at 1067 (¶12) (internal citation omitted).

Parting thoughts …

I wonder whether Dorothy now thinks it was worth the few extra bucks she saved to keep that joint account open with her n’er-do-well estranged husband. [Incidentally, the COA opinion points out that Derrick owed Dorothy back child support also. Ouch.].
Don’t sit on a case like this. File something right away, even if it’s wrong. You can always amend later, and you can continue to negotiate and talk with pleadings filed. Here, the five-month delay was fatal to Dorothy’s claim.
This may seem like a rare case, but I actually have had a couple of cases where the question was raised about the rights of joint-account owners. They were resolved, but you never know when yours will not be.

NOTICE FOR A DAY CERTAIN

May 2, 2013 § Leave a comment

Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.

The statutes in this case specify certain notices that must be given to “all interested parties”:

Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”

The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.

Here’s what the COA said in the majority opinion by Judge Griffis:

¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.

So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.

THE BITE OF PAST-DUE CHILD SUPPORT

April 16, 2013 § 1 Comment

MCA 85-3-4 deals with execution of garnishments in Mississippi. Most garnishments are limited to 25% of “disposible income,” as defined in federal law. But if the judgment is for past-due child support, the garnishment may be as much as 50-65% of disposible income. That’s quite a bite.

In the MSSC case of Reasor v. Jordan, decided April 4, 2013, Frankie Reasor had gotten custody of his daughter from his ex-wife, Rose Jordan, in a modification case. He was also tagged with a hefty $24,000 judgment for past-due child support and unpaid medical expenses of the child that predated the modification. The chancellor popped Frankie with a 55% garnishment, and, both impoverished and aggrieved, he appealed.

Here’s how Justice King’s majority opinion addressed the issue:

¶27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So. 2d 986 (Miss. 1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.

¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:

The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.

Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.

¶29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85-3-4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.

The main thing to take from this case is to be aware of the generous garnishment provisions as they relate to unpaid support. As I read the statute, they would apply not only to child support, but also to alimony.

When you read this case, look also at the MRCP 81 issues raised by the way that the original chancellor handled the case. I agree with Justice Pierce’s concurrance/dissent on this issue. R81 requires notice. I don’t agree that Mr. Reasor got proper notice in this case. Chalk this up as another case added to the confusion over how R81 works.

VANISHING ATTORNEY’S FEES IN A PATERNITY ACTION

March 21, 2013 § 2 Comments

Tash Solangi filed suit against Kasey Croney to establish paternity and to obtain custody of the parties’ minor child, Caleb. Much of the trial was devoted to the parties’ custody conflict. At the conclusion of the hearing, the court awarded Kasey physical custody, gave the parties joint legal custody, changed the child’s name, and assessed child support. The chancellor also awarded Kasey a judgment in the sum of $14,000 in attorney’s fees. Tash appealed.

Much of the COA’s opinion in Solangi v. Croney, handed down March 12, 2013, addresses the chancellor’s findings on the Albright factors, which the COA did not disturb. It is the court’s handling of the attorney’s fee issue to which we turn out attention. Judge Fair’s opinion states:

¶28. The chancellor awarded Kacey approximately $14,000 in attorney’s fees and costs. The award was based on Mississippi Code Annotated section 93-9-45 (Rev. 2004), which provides that the defendant in successful paternity actions shall pay costs and attorney’s fees. There are two problems with this award. The first is that the trial from which the award largely derives was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings. The second problem is more fundamental: the statute states that costs and fees shall be assessed against the defendant. Given that Kacey was the defendant, section 93-9-45 does not authorize an award of costs and fees against Tash.

¶29. We recognize that the issue of attorney’s fees in domestic cases is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Therefore we must also consider the possibility that the award can be justified under the McKee factors. However, that would require that Kacey be unable to pay her own fees. See Dunaway v. Dunaway, 749 So. 2d 1112, 1120 (¶20) (Miss. Ct. App. 1999). No such finding was made by the chancellor, nor would the record support it given that Kacey and Tash were of similar means, with Kacey earning approximately $72,000 per year.

¶30. We conclude that the award of fees and costs to Kacey is unsupported by the record and must be reversed and rendered.

Two points: (1) if you rely solely on the paternity (parentage) statute for authority to award an attorney’s fee, you’d better be representing the plaintiff; and (2) if the case is not for contempt, you must prove inability to pay. and although Judge Fair does not mention it here, he has said recently in another opinion, that in every case you should put on proof of the Mckee factors; otherwise there is nothing in the record to show how the chancellor arrived at a decision that the dollar amount awarded was reasonable.

And another point: I would have offered proof of how much time was devoted to the custody action and how much was devoted to the paternity action. That way, if the judge finds only part allowable, she has a record on which to base a partial award.

If you will click on that category search button up there on the right side of the page and again click on “Attorney’s Fees,” you will find a slew of posts on proving attorney’s fees and protecting the award on appeal.

THE CONSERVATOR AND THE STATUTE OF LIMITATIONS

March 20, 2013 § Leave a comment

Angela and Brian filed a joint complaint for divorce on the sole ground of irreconcilable differences. While the 60-day waiting period was running, Angela was involved in a car wreck, suffering a broken neck and brain damage. Because she was no longer able to handle her business, a conservator was appointed and authorized to proceed with the divorce action.

On January 10, 2000, the trial court entered the final judgment of divorce. It included a provision that Brian reimburse Angela for $5,500 she had paid toward purchase of an automobile. In a subsequent proceeding brought by the conservator for enforcement of the judgment, Brian was ordered to pay the money, and the court awarded a judgment with interest, entered January 9, 2001.

In January, 2011, nearly ten years after the 2001 judgment, Angela’s conservator sought and obtained a writ of garnishment. After back-and-forth series of rulings, the trial court cancelled the writ because the judgment had expired due to the statute of limitations in MCA 15-1-47. The court rejected the conservator’s claim that Angela’s incapacity had tolled the statute of limitations as provided in MCA 15-1-59 because the “conservator is fully authorized to employ attorneys and bring actions on the [ward’s] behalf,” citing USF&G v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss. 2002).

Angela’s conservator appealed.

In the case of Conservatorship of Lewis v. Smith, rendered March 5, 2012, the opinion has some key observations about the duties of a conservator when it comes to enforcing and protecting the rights of the ward:

¶8. Lewis contends that the chancellor erred in finding that section 15-1-59 does not toll the statute of limitations in regard to the judgment’s expiration under section 15-1-47. Under section 15-1-47, a judgment lien expires after seven years from the entry of the judgment.

¶9. In her August 26, 2011 order, the chancellor found that section 15-1-59 was “inapplicable to the present matter as it concerns persons with disabilities and minor children; when a conservator was appointed to protect the legal rights of the mentally incapacitated Angela Ann Lewis, thus invoking the provisions of Miss[issippi] Code Ann[otated] [s]ection 15-1-53.” Mississippi Code Annotated section 15-1-53 (Rev. 2012) states:

When the legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability and within the saving of any statute of limitations; and may be availed of in any suit or actions by such person.

It is important to note that “the duties, responsibilities and powers of a guardian or conservator are the same.” Harvey v. Meador, 459 So. 2d 288, 292 (Miss. 1984). See also Miss. Code Ann. § 93-13-259 (Rev. 2004).

¶10. From the language of the order, the chancellor found that the right vested in the conservator and not in Lewis. Lewis contends that this contention is contrary to Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890). The Mississippi Supreme Court in Weir found that section 15-1-53 only applies “where the legal title to property or the right of action, at law or in equity[,] is in the guardian, and not the infants.” Weir, 67 Miss. at 455, 7 So. at 296. The court noted that “[w]hen the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law[,] . . . his right of action is barred . . . .” Id.

¶11. Under Mississippi Code Annotated section 93-13-38(1) (Rev. 2004), “All the provisions of the law on the subject of executors and administrators[] relating to settlement or disposition of property limitations . . . shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” Also, Mississippi Code Annotated section 93-13-38(2) (Rev. 2004) states: “The guardian is empowered to collect and sue for and recover all debts due his said ward . . . .”

¶12. From the language of section 93-13-38, the conservator had a fiduciary duty to pursue the $5,500 owed to Lewis. Therefore, the right of action was in the conservator and not Lewis. The conservator was appointed prior to the entry of the judgment of the divorce. The conservator brought the motion to hold Smith in contempt for failure to pay. It was the conservator’s fiduciary duty to file a writ of garnishment when Smith failed to pay. Under the plain language of section 15-1-53, if the right is in the guardian, in this case the conservator, the statute of limitations runs against the guardian and not the ward.

¶13. The right in action is in the conservator, therefore making the savings clause of 15-1-59 inapplicable, because “[t]he purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (¶11) (Miss. 1998). Lewis has a court-appointed conservator who is able to assert rights on her behalf. Therefore, Lewis does not require, nor is subject to, the protections provided by the saving clause.

If you are representing a conservator — or a guardian, executor or administrator, for that matter — make sure that your client is doing what is necessary to protect the legal interests of the ward or beneficiary, and is not allowing statutes of limitation to run.

the burden of responsibility of a fiduciary is a heavy one, as I have emphasized here before. This case points up yet another way in which your fiduciary may make a “perilous mistake” in handling the ward’s business. It’s your job to steer your client in the right path, and to help avoid the common mistakes that fiduciaries commit.

A MINORITY CONUNDRUM

March 19, 2013 § 2 Comments

I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.

The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.

Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.

The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?

I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.

DESULTORY THOUGHTS ON JUDGMENT INTEREST

March 7, 2013 § Leave a comment

It is error, as a matter of law, for a chancellor not to award interest on a judgment for past due support. Caplinger v. Julian, decided February 12, 2013, by the COA, citing Ladner v. Logan, 857 So.2d 764, 772-73 (Miss. 2003).
MCA 75-17-7:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Each unpaid child support payment begins to accrue interest from the date it is due, and the chancellor has no authority to abrogate or disallow interest as to each payment for equitable or other reasons. Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001).
It was not error for the chancellor to set interest on unpaid child support at 8% per annum, even though prevailing interest rates were considerably lower when assessed. The payments were due for a span of years, and interest rates fluctuated during the time that the payments vested. Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003).
8% interest found to be reasonable. Adams v. Adams, 591 So.2d 431, 436 (Miss. 1991); and Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005).
A 3% interest rate was upheld. The COA found no authority to hold that particular rate to be an abuse of discretion or manifestly in error. Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003).
In Beasnett v. Arlidge, 934 So.2d 345, 349 (Miss. App. 2006), the court upheld an award of 8% per annum assessed on past-due child support in a TPR case.
MCA 75-17-1 sets legal rates of interest and finance charges on contracts and accounts. As of today, the legal rate on “notes, accounts and contracts” is 8%. The parties may, however, contract for a greater rate within the limits set out in the statute.

Although interest rates of between 3% and 8% have been upheld, it would seem to me a logical argument that 8% is still a reasonable rate, even in these depressed-interest times, since that is the rate that the legislature has set and maintained in effect for “notes, accounts and contracts.”

THE END OF COLLEGE EDUCATION SUPPORT?

February 4, 2013 § 2 Comments

The seminal case of Nichols v. Tedder, 547 So.2d 766 (Miss. 1989) established once and for all two significant principles of Mississippi family law: One, that the duty of support for a child includes college education support; and two, that the duty to support a child can extend no further than the child’s 21st birthday.

Senate Bill 2339, introduced in this session by Senator Burton, would eradicate both principles.

The bill would amend MCA 93-11-65 with this language:

(9) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, for child support orders established on or after July 1, 2013, emancipation shall occur when the child:

(i) Attains the age of eighteen (18) years or graduates from high school, whichever comes later, but in no event shall the duty of support continue after the age of nineteen (19) unless otherwise agreed to in the support order, or

(ii) Marries, or

(iv) [sic] Joins the military and serves on a full-time basis, or

(b) Unless otherwise provided for in the underlying child support judgment established on or after July 1, 2013, the 260 court may determine that emancipation has occurred and no other support obligation exists when the child:

(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or

(ii) Cohabits with another person without the approval of the parent obligated to pay support.

(c) The duty of support of a child who is incarcerated but 268 not emancipated shall be suspended for the period of the child’s incarceration. [Emphasis added]

The implications of these changes for divorce practitioners?

Under our present law, the parties may agree to college education support to age 21 (or beyond if they can agree). They know that if they can not reach an agreement the court will likely order college support to age 21, which is the limit of the court’s authority under Nichols v. Tedder. So, recognizing the likelihood, most divorcing parents agree to college education support to age 21.

Under this bill, unless the parties agree, the duty of support will absolutely end at age 19, which would be during the sophomore or possibly junior year of college for most children. The court would have no authority to order any support beyond age nineteen, eliminating the bargaining pressure in favor of college support.

Based on years of experience negotiating PSA’s, I expect that college education support will fall into the category of “my client prefers to help his child voluntarily rather than being bound by any contract,” which translates into “he’ll never do it,” or “he might agree in the future if his ex will give up something more.”

Anyone who has practiced any amount of divorce law is painfully aware of what many refer to as “divorce blackmail.” That’s the situation created by our present statutory divorce scheme, which requires the parties to agree in order to obtain a divorce where one of the fault grounds is not applicable. The party wanting the divorce more must give up more, sometimes everything, just to obtain the divorce. Under this bill, you can add college education support to the already long list of bargaining chips.

College education has been found conclusively to be a good thing for young people. It makes their financial future more secure, enhances earning ability, exposes them to new ideas, expands their horizons, and imparts advantages to them in innumerable ways. Children of divorced parents already face many financial challenges. Why would the public policy of Mississippi be to diminish the opportunity of children in a divorce to a college education?

The only reasons assigned for this proposal that I have heard are: (1) that Mississippi and New York are the last two remaining states who have 21 for the age of emancipation; (2) that lowering the emancipation age is the quid pro quo demanded by some legislators for them to agree to raise the statutory child support guidelines; and (3) that it would save DHS a lot of money.

The fact that we are one of only two states with this particular age of majority seems to me a laughable justification. If we were to go through and change every law where we were one of only a few states with a certain provision, we would literally have to rewrite our code, including elimination of separate equity courts (only four other states, as far as I know). Although we should always be informed and inspired by what other states do, our laws should be based on what is best for Mississippians, not on what everyone else is doing. The acid test should be: “How does this benefit our children?”

The second reason, about raising the guidelines, is based on an earlier part of the bill that would increase guideline child support percentages. The quid pro quo is that if we are going to increase the amount of child support being paid, we should decrease the amount of exposure time for the payer. I understand the politics of trade-offs, but how does this benefit children in Mississippi?

The last is a byproduct of the harsh 21st century reality that many policy decisions that directly and indirectly affect many citizens are driven by budget considerations, often budget considerations that those same citizens neither benefit from themselves nor will ever. Yes, this will be a boon to the bean-counters at budget time, but again, how does it benefit our children?

I would have less heartburn with this bill if it were amended to add an education clause that would authorize court-ordered education support — college, technical, or otherwise — to age 21.

THE RIGHT OF AN ADOPTED CHILD TO INHERIT FROM THE NATURAL PARENTS

January 30, 2013 § Leave a comment

Consider this scenario:

Father and Mother One have a daughter together, whom we will call Daughter One. Mother One dies and Father is remarried to Mother Two. Father and Mother Two have a daughter together, whom we will call Daughter Two. Soon after Daughter Two’s birth, Father and Mother Two are divorced. Mother Two remarries, and her new husband, with Father’s consent, adopts Daughter Two. Father never remarries, has no more children, and dies intestate. Who are his heirs?

If you answered both Daughter One and Daughter Two, you are correct.

MCA 93-17-13 specifies that ” … the natural parents and natural kindred of the child shall not inherit by or through the child, except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated except as to a natural parent who is the spouse of the adopting parent.” Nothing in the statute precludes the adopted child from inheriting from the natural parents.

In Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970), the Mississippi Supreme Court held:

While the effect of a final decree of adoption is that the natural parent or parents will not inherit by or through the child, and all parental rights are terminated, Mississippi’s adoption law does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is terminated. We think the intent of the legislature is clear; they intended for the child to continue to inherit from his or her natural parents.

2 C.J.S. Adoption of Children s 63(c) page 454 (1936) succinctly states the applicable law in this way:

‘In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in s 6 of this Title, and also, in in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.’

There is no express legislative declaration to that effect in Mississippi’s adoption law.

This issue was presented to me recently when a lawyer inquired whether an adoption decree that included the express language that the minor child ” … shall inherit from the natural father” would comport with the law. And, if so, would it then mean in the fact scenario set out above that Daughter Two would be included as an heir. Based on my research, I believe it does, whether the express language is included in the adoption decree or not. Don’t you agree that there are some implications here for intestate estates?

NAMING NAMES

January 29, 2013 § 1 Comment

The COA’s decision in Powell v. Crawley, handed down January 22, 2013, presents an opportunity to remind you of several aspects of name changes about which you need to be aware.

Christina Crawley gave birth to a baby daughter on January 29, 2010. The following day, Chase Powell, who was not married to Christina, signed two forms provided by the Mississippi Department of Health. The first form was an acknowledgment of paternity. The second was a “Name of Child Verification Form,” which included the following language:

By my signature[,] I verify and agree that the [c]hild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.

The verification form also included the following statement:

The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the [f]ather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [c]hild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.

Chase verified the child’s name as Carsyn Michelle Crawley.

Nine months later, Chase filed a complaint in chancery court seeking an adjudication of paternity, child support, and visitation. He also asked to change Carsyn’s surname to Powell. At hearing, the matter was presented solely by argument of counsel, who offered the forms described above for the court’s inspection.

The chancellor ruled that Chase had waived his right to have the child’s surname changed when he signed the verification form.

The COA affirmed the chancellor’s decision, but not for the reason assigned by the trial judge. Judge Irving, writing for the majority, said:

“We need not decide whether the chancery court abused it[s] discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So. 2d 285, 289 (¶13) (Miss. Ct. App. 2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).”

So here are a few nuggets to take away from this decision:

If you are seeking to change a person’s name only, then you proceed under MCA 93-17-1(1), which would obviously require in a case such as Chad Powell’s that the mother and father would be parties.
Another frequent cause of name changes is post-divorce, when the name change was not included in the divorce judgment and the petitioner wants a court order to get Social Security, driver’s license, retirement and other records straight. That kind of name change is also governed by MCA 93-17-1(1). It would be an ex parte action, since there is no other interested party.
If you wish to change the name on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, you can expect a result strikingly similar to Chad Powell’s.
MCA 93-17-1(2) allows the court to “legitimize” a child when the natural father marries the natural mother. Since that relief would include adding the father to the birth certificate, you should comply with MCA 43-57-23 and make the State Registrar of Vital Records a party.
There is a dearth of case law as to how the statutes authorizing establishment of paternity via acknowledgment interact with the statutes for parentage (paternity), child support, custody and visitation. If I were in practice, I think I would have advised Chase to file the parentage action as he did so as to open up all of the other relief incidental to being the father. Acknowledgment of paternity is only that; it does not confer visitation or custodial rights, does not set child support, and may even be set aside in certain conditions.
This decision sidestepped the question of the chancellor’s authority and scope of discretion in changing the child’s name. Since it is not res judicata as to the State Bureau of Vital Statistics, I would guess that Chase could file his suit again, this time making the agency a party. Maybe then we’ll get an answer.

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