Statutes | The Better Chancery Practice Blog

NEW FACTORS FOR UPWARD OR DOWNWARD DEVIATION IN CALCULATING CHILD SUPPORT

August 29, 2012 § Leave a comment

Significant amendments to the child support guidelines went into effect May 22, 2012, and I don’t think most attorneys are aware, because I don’t hear any proof addressing them in cases I try.

The amendments were to MCA 43-19-103, which sets out the bases that the court may use to deviate from the statutory child support calculation guidelines.

(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.

(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

So if you represent a payee, you need to highlight those daycare expenses necessary for employment, have your client talk about its impact on her budget, and have her ask specifically for the court to take it into account in calculating child support. And disability of the payee is now a factor.

Also look at subsection j. It can be used by either payer or payee. Many families have significant debt incurred for the household, and the party who will have to pay it can look for some relief under this provision.

While you’re at it, check out all of the deviation factors. I hear a lot of cases where I never even hear any of them mentioned.

INVESTMENT RESPONSIBILITIES OF FIDUCIARIES

July 30, 2012 § 4 Comments

Executors, administrators, guardians and conservators have a fiduciary duty to the beneficiaries or wards (trustees have their own, separate body of law, although they are fiduciaries also). The fiduciary’s duty (in the absence of explicit directions in a will) …

” … is to provide honest, intelligent management … [h]owever it might be more accurate to think of the [fiduciary] as a co-manager (and perhaps a junior co-manager at that) with the court being the other manager. The [fiduciary] can do very little without the prior approval of the court. The [fiduciary’s] responsibility is to be knowledgeable about the estate, to anticipate problems and dangers, as well as opportunities, to decide upon the intelligent and prudent thing to do, and then to go to the Chancellor to try to get the authority to do it.” Weems, Wills and Administration of Estates in Mississippi, 3rd Ed., §2.34, p. 65.

Absent directions in a will or court authorization, or specific authority by statute, the fiduciary has no authority to: bind the estate by contract such as a lease or note; purchase or sell real estate or any other asset; warrant title on behalf of the estate; borrow money for the estate; mortgage property of the estate; or even to continue a decedent’s business except to wind it up or as provided in MCA 91-7-173.

MCA §93-13-38 requires the guardian or conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount.” The duty of the fiduciary is to employ the funds in their hands profitably, and they may be liable on their bonds for failure to improve the estate.

Does that duty to improve the estate mean that there is a duty to invest?

The answer to that question, of course, is that every case is different, and several factors come into play, including:

Whether the the amount of funds in excess of those needed in the immediate future to pay claims and administration expenses, and in the case of wards, the necessary, authorized expenses, make investment practical;
The economic conditions in the markeplace;
Whether in the case of a decedent’s estate that it will be open for a length of time that would make investment practical.

In the case of McNeil v. Hester, 753 So.2d 1075 (Miss. 2000), the court held that the fiduciary has no duty to invest because MCA 91-13-3 because that statute uses the permissive may rather than the mandatory shall.

But simply because there is no explicit statutory duty does not mean that not investing would be prudent. The fiduciary is under a duty to deal prudently with the estate, and in a given circumstance non-investment may be judged imprudent. MCA 91-13-3 says that the ” … fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of the capital.”

MCA 91-13-3 and -5 allow certain investments to be made without specific authority of the court, giving the fiduciary some flexibility to park funds until a more prudent investment, if any, can be made. Those investments, unless prohibited by court order, include: time certificates of deposit; savings or other interest-bearing accounts of any state or national bank whose main office is located in Mississippi, and whose deposits are FDIC-insured; any state or federal savings and loan association whose main office is located in Mississippi, and the deposits of which are FSLIC-insured. Not included are credit union accounts, online banks, e-trade, Schwab or Fidelity, or the mayonnaise jar buried in the back yard.

Whether a given investment is prudent was the issue in the COA case of In re Estate of McGee, 982 So.2d 428 (Miss.App. 2007), in which the court held that, where the decedent had invested in the stock market for many years and the fiduciary had received his portfolio, which he put in the control of a reputable broker pursuant to court order, the fiduciary was not liable to the heirs when the portfolio declined in value after 9-11-01. The court pointed out that “administrators are not insurers or guarantors of the estate’s assets.” Citing Harper v. Harper, 491 So.2d 189, 198 (Miss. 1986).

So what exactly is and is not prudent? For guidance in addition to particular case law you might want to look at the Mississippi Uniform Prudent Investor Act, MCA 91-9-601- et seq., which actually applies to trustees, but would certainly be persuasive authority for any court to consider in weighing the prudence of any other fiduciary. Section 603 sets out factors for the court to consider as a standard of care. Other sections in the law address the duties of diversification, loyalty, impartiality, reasonability of cost, and care in delegation of management responsibility.

The attorney representing a fiduciary has a duty to advise him or her of the responsibilities involved, and to make sure that the fiduciary is acting prudently and in compliance with the law. The subject is more complex than the scope of this post, so consider this an introduction and prompt to study it in adequate depth to be of service to your clients.

[Much of the information here is derived from a presentation by Bob Williford, Esq. to the chancery judges last April]

BEST INTEREST IN A PARENT – NON-PARENT CUSTODY DISPUTE

July 23, 2012 § Leave a comment

Is it necessary for the chancellor to analyze the proof in light of the Albright factors in a case where the grandparents are seeking to take custody from the natural father, the sole surviving parent, based on a finding of unfitness?

That Albright analysis question was an issue before the COA in the case of Lucas v. Hendrix, decided by the COA July 17, 2012. At trial, the chancellor had found that the father, Adam Lucas, was unfit, and awarded custody of the two minors, Tyler and Cody, to the maternal grandarents, Jeannie and John Hendrix, without any Albright analysis. Here is how Judge Roberts’ opinion addressed it, beginning at ¶16:

In his first issue, Lucas asserts that the chancellor used an incorrect legal standard by failing to apply an Albright analysis before granting the Hendrixes custody of Tyler and Cody …

¶17. In Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court outlined multiple factors to be considered when determining which natural parent should receive custody of the child, with the polestar consideration being the best interest of the child. The supreme court and this Court have repeatedly stated that a different analysis must be applied when adjudicating custody between a natural parent and a third party, such as in this case. In custody cases involving a natural parent and a third party, a presumption exists that the natural parent is the best custodian for his child. McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993). However, this natural-parent presumption may be overcome by clear and convincing evidence “that the parent has (1) abandoned the child[;] or (2) the conduct of the parent is so immoral as to be detrimental to the child[;] or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.” Id. (quoting White v. Thompson, 569 So. 2d 1181, 1183-84 (Miss. 1990)); see also McCraw v. Buchanan, 10 So.3d 979, 984 (¶15) (Miss. Ct. App. 2009). Additionally, pursuant to Mississippi Code Annotated section 93-5-24(1)(e) (Rev. 2004):

Upon a finding by the [chancery] court that both parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child[,] the [chancery] court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome and stable environment; or

(ii) . . . any other person deemed by the [chancery] court to be suitable and able to provide adequate and proper care and guidance for the child.

In the current case, the chancellor relied on this statute because Moore, the boys’ natural mother, was deceased; therefore, Lucas was the sole remaining natural parent. If a chancellor finds the remaining natural parent to be unfit, as she did in this case, then the statute gives the chancellor the authority to grant custody to a third party.

¶18. We do not read Mississippi Code Annotated section 93-5-24 or the majority of prior case law to require an Albright analysis if the chancellor finds the sole, natural parent has abandoned or deserted the child or is unfit to raise the child …

The decision went on to distinguish this case from In re Dissolution of the Marriage of Leverock and Hamby, 23 So.3d 424 (Miss. 2009). The primary point of departure between the two cases was that the chancellor made a finding of unfitness in the Lucas case, but there was no such finding in Leverock.

The important feature of the Lucas case is that no Albright analysis is necessary in a contest netween a natural parent and third parties once the chancellor has found unfitness. That finding alone is sufficient to trigger the change and opens the door to either class of custodians set out in the statute, without a best-interest Albright analysis.

Adam argued also that the chancellor erred by not expressly finding by clear and convincing evidence that he was unfit. Without saying it in so many words, however, the COA held the chancellor’s findings to be so detailed and supported by proof that they were tantamount to a finding by clear and convincing evidence, and so brushed aside this contention.

So does this mean you should not bother with proof of the Albright factors when you try a case of this type? I guess, strictly speaking, the answer would be in the affirmative. But why take the chance? Even if the chancellor does not use that evidence, you have it in the record if you need it.

FIVE MISTAKES THAT FIDUCIARIES MAKE

July 18, 2012 § 7 Comments

Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.

WRONGFUL DEATH AND THE ERRANT FATHER

June 28, 2012 § 1 Comment

In 1988, Catherine LePori gave birth to a son, Brandon, without benefit of marriage. In 2001, DHS filed an action against Alton Welch to establish paternity of the child. For reasons unexplained in the record, no judgment was entered until 2007. Those are the barebones facts that underlie the COA decision in LePori v. Welch, decided June 26, 2012.

We can deduce from the record that Alton never paid any significant child support during the pendency of or after that DHS suit, and that he did not develop any significant relationship with the boy.

In March, 2008, Brandon was was working in a sewer line when it caved in and he was killed. He was nineteen at the time.

In March, 2009, Catherine filed suit to terminate Alton’s parental rights posthumously, expressly for the purpose of preventing Alton from having any interest in a wrongful-death suit she had filed. Alton had filed a motion to intervene in the wrongful-death action.

The chancellor dismissed Catherine’s petition for failure to state a claim, and she appealed.

In its decision, the COA noted that the statutes providing for termination of parental rights (MCA 93-15-103, et al.), are concerned with the best interest of the child, not the parents or survivors. Thus, if the child is deceased the statute logically no longer applies. The court held that the statute is not to be applied posthumously.

Catherine argued that dismissal of her termination case would unjustly enrich Alton, whom, she alleged, had caused substantial erosion of the parent-child relationship. Judge Maxwell’s opinion pointed out, however, that MCA 91-1-15(3)(d)(i) provides that the natural father must have “openly treated the child as his, and ha[ve] not refused or neglected to support the child” in order to inherit. That code section is incorporated into the Wrongful Death Act (MCA 11-17-13).

Based on the code sections, Judge Maxwell pointed out that Catherine could have filed an action to determine Brandon’s heirs at law in his estate, and pled 91-1-15 as a basis to adjudicate that he had no interest. Or, Judge Maxwell noted, she could have pled the statute to argue against Alton’s motion to intervene in the circuit court action.

This is an interesting case that has implications beyond its apparently narrow focus. When you’re confronted with issues such as this, don’t get tunnel vision and limit yourself to one way to go. Keep your eye on the big picture and consider how all the component parts fit together.

AN ADOPTION PUZZLER

June 21, 2012 § 8 Comments

Here’s an adoption scenario I was presented with recently:

Natural father is convicted of a felony and sentenced to a long term in Parchman. Natural mother is left at home with one child, and is struggling financially. She does not want a divorce. Paternal grandfather, 72 years old and a widower, is willing to help by adopting the child. Natural dad will sign a consent. Jurisdiction and venue are proper. The adoption will allow the child to be covered by grandpa’s health insurance, and will have the added bonus of providing SS benefits for the child in the event that gramps kicks the bucket. Mom wants to continue to be the mom, so the adoption judgment will terminate natural dad’s parental rights, substitute the paternal grandfather for the natural father, and leave the mom in her position as mom. As the lawyer helpfully points out, it’s a win-win-win situation. Right?

You’re the special chancellor. How do you rule? What’s the basis for your ruling?

Answer later.

PRICE HIKE

June 6, 2012 § 3 Comments

You’re receipting clients now, I know, for some things you plan to file in July, so don’t forget that MCA 25-7-9 is amended, effective July 1, 2012, to add $40 to court costs in chancery court.

That fault-based divorce or other itigation that costs $99 now to file will cost your client $139 starting July 1.

Irreconcilable differences divorces and other matters that have been $54 will increase to $94.

HB 1268 MERITS YOUR ATTENTION

June 5, 2012 § Leave a comment

Back in 2007, the legislature made some sweeping changes in the adoption statute, particularly with regard to jurisdiction and venue.

The 2012 legislature has made some more changes, embodied in HB 1268, which take effect July 1, 2012. That means that if you have an adoption pending on that date, you’d better be prepared to meet its requirements. I suggest you click on the link and print yourself a copy so you can change your office forms and procedures.

Here is a summary of the changes:

The child (the term I will use for the person — adult or child — who is to be adopted) may not be placed in the home of or adopted by the adoptive parent(s) before a court-ordered or voluntary home study has been completed. MCA 93-17-3(6). (See comments below)
The required home study must be done by a licensed adoption agency, or a licensed, experienced social worker approved by the chancery court, or by the DHS “if required by MCA 93-17-11” (See comments below). MCA 93-17-3(6).
For out-of-state adopting parents, the Interstate Compact for Placement of Children (MCA 43-18-1, et seq.) must first be complied with. Evidence of placement approval (forms 100A and 100B) must be placed in the permanent adoption record file. Also, a minimum of two post-placement reports conducted by a licensed placement agency must be filed with DHS Interstate Compact for Placement of Children Office. MCA 93-17-3(7), a newly added provision.
The Indian Child Welfare Act (ICWA) must be complied with, if applicable. If the ICWA is not applicable, the petition must state that it is not applicable, or an affidavit to that effect must be on file before finalization. MCA 93-17-3(8), a newly added provision.
The post-adoption reports required in MCA 93-17-205 are changed. These are forms that are required to be filed with the State Department of Health, Bureau of Vital Records. MCA 93-17-205.

Comments: It is not at all clear to me how the new language in MCA 93-17-3 regarding home studies will interface with MCA 93-17-11. The language of section -3(6) starts out in seemingly mandatory fashion, but ends with “if required by Section 93-17-11” language. MCA 93-17-11 is the code section that allows the chancellor in his or her discretion to require a home study. My best guess is that the new language in -3(6) will be interpreted to define who has authority to do the home study that may be ordered by the court in -11.

Notice the ICWA pleading requirement. You’d best add it to your forms.

CONSTITUTIONAL: MARTIN FACTORS AND GRANDPARENT VISITATION

May 21, 2012 § 3 Comments

Ever since grandparent visitation was enacted by our legislature in 1983, I have heard grumblings from some members of the bar that the statute is unconstitutional. The complaint chiefly is that it intrudes the state into the parent-child relationship and invades the province of parents’ decison-making, which should be beyond the state’s reach when the parents have not violated any laws or hurt their children.

The first test came in the case of Martin v. Coop, 693 So.2d 912 (Miss. 1997), in which the MSSC upheld the constitutionality of the statutes and established factors that trial courts were required to consider in adjudicating whether there should be grandparent visitation in a given case, and its terms.

The matter appeared to be settled until the US Supreme Court’s decision in Troxel v. Granville, 530 US 57 (2000), which held a visitation statute of the State of Washington to be unconstitutional. In Troxel the opponents saw another avenue of attack, and it was only a matter of time before the issue would percolate up from a trial court.

The first case in the aftermath of Troxel was Zeman v. Stanford, 789 So.2d 798 (Miss. 2001), in which the appellants questioned the constitutionality of MCA 93-16-3(1), which affords grandparental visitation when the parents are divorced and one parent has been awarded custody. The court in Zeman held that the constitutionality of that very statute had already been addressed and found constitutional in Martin v. Coop, and that Troxel added nothing new to the conversation.

The most recent iteration on the subject came in the case of Smith v. Wilson, an appeal from Chancellor Jim Davidson’s ruling in Lowndes County Chancery Court. In this case, the grandparents had sought visitation on the basis that their daughter, the child’s mother, had died. The judge granted the visitation in favor of the Wilsons, and the Smiths appealed, questioning the constitutionality of both MCA 93-16-3 and 93-16-5 in light of Troxel.

In its May 3, 2010, opinion authored by Justice King, the court first distinguished the statute deemed unconstitutional in Troxel. That Washington law provided:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

The statute was too broad in scope, since it did not define any specific class of persons who would have standing to petition for visitation, and it did not protect the parent’s right to make decisions about rearing her children. As for other non-parental visitation statutes, the Supreme Court declined to go further, stating:

Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.

Justice King pointed out that the Mississippi statute is not overly broad as was the statute in Troxel, and that both Martin and Zeman correctly dispose of the constitutionality argument through the application of the Martin factors, which protect the parents’ substantive due process rights. The court held that neither of the statutes nor the Martin factors violate the Constitution.

A couple of other points from the decision:

The Smiths’ argument that the burden of proof should be by clear and convincing evidence, was rejected by the court, which found no authority for the proposition (¶¶ 26-27).
The court found (¶30) no merit to the argument that chancellors should be required to defer to parents’ wishes. The court stated that “While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference.
Also rejected was the Smith’s argument that a parent must be found unfit before awarding grandparent visitation (¶¶31-32).
The court held (¶¶33-35) that there is no requirement in the statute providing for visitation by the parents of a dead parent that there have been an unreasonable denial of visitation as a prerequisite.

The decision, joined in by all nine justices, affirmed Judge Davidson’s award of grandparent visitation.

So it would appear that the constitutionality of Mississippi’s grandparent visitation is laid to rest, at least for now. I do not know whether a petition for rehearing has been filed, but that would likely be a futile gesture considering the unanimity of the court. Maybe the appellants are maneuvering for a run at the US Supreme Court. We’ll see.

DOES ANYBODY ACTUALLY DO THIS?

May 10, 2012 § 7 Comments

The following is from the “Attorney Check List” section of the Civil Filing Form Instructions in the Uniform Data Collection Procedures (UDCP) mandated by the MSSC:

“In accordance with the Federal Social Security Act, Titla IV-D, §§ 454(2)(A) and 454A(e)(4), and Miss. Code Ann. § 43-19-31(l)(iii) (Supp. 2000), cases wherein child support is sought must provide the name, date of birth and Social Security number for all parties to the case to the State’s repository for this information (in Mississippi, the Department of Human Services). If child support is contemplated at the time of the initial pleading, filing party must complete Child Support Information Sheet. Initial pleadings wherein child support is contemplated must include this sheet prior to the clerk’s admitting the pleadings for suit; if, at any time after filing initial pleadings, child support becomes an issue and this sheet has not been submitted as part of the Court file, attorney for Plaintiff shall provide the completed form for the Court’s file. Any information not provided at the time of filing, but discovered at a later time up to disposition of the case, may be reflected in a more complete form being filed with the clerk’s office for the court file. The Child Support Information Sheet shall be submitted by the clerk to the AOC along with the disposition form … ” [Emphasis in original]

Do you know anybody who complies with this? The first MSSC order adopting UDCP and mandating reporting was in 1993, and the last amendment was ordered in 2001. Never during the time that I practiced law did I offer such a form to a clerk, either before or after initiating a suit, and I do not know of anyone else who did. I asked a clerk whether she had ever had a lawyer submit such a form, or whether she or the other clerks had ever refused to file pleadings for failure to submit the form, and the answer was negative on both counts. She also said that AOC has never raised the issue.

On another similar tack, we in the 12th District have required Wage Withholding Orders to be submitted in every child support case since they came to be in the 1980’s. Judge Warner insisted on it, and we did it, and continue to do it. Judges in other districts have told me that they not only do not require them, but that their predecessors did not.

All of this probably falls under the category of letting sleeping dogs lie, and I will. I just found these curious.

Where Am I?