Partiting the Former Marital Residence
January 14, 2016 § 2 Comments
Robert and Betty Coleman were divorced in 2002. Under the terms of the divorce judgment, Beverly got exclusive use and possession of the former marital residence, which was situated on family land deeded to the couple by Beverly’s mother, until the parties’ minor child attained majority age. Beverly was responsible to pay the mortgage debt, taxes, and insurance on the property, and the parties were to split equally any maintenance expenses. The judgment did not spell out what was to be done when the child turned 21.
In the years following the divorce, Beverly lived in the home and dutifully paid the sums assigned to her. Robert never paid any of the maintenance expenses.
When the child turned 21 in 2013, Beverly filed an action, apparently for modification of the divorce judgment, seeking possession, title to, and ownership of the home.
Robert counterclaimed for partition, and he filed a motion for a summary judgment that partition, rather than modification, was the proper avenue to accomplish the division. The chancellor agreed with Robert, ruling that “the parties are not married, the property is no longer the marital homestead and the property is subject by law to a division by partition as provided by statute.” That’s a neat, pinpoint ruling that avoids the problem that property division may not be modified.
A hearing was held on the petition, and the chancellor ruled that Betty should have title. He adjusted the equities by ordering Beverly to pay Robert $34,103.70, which amounted to his half-equity in the property at the time of the divorce adjusted upward for appreciation over time.
Robert appealed, arguing that the trial court impermissibly modified the divorce judgment and unfairly partited the property.
In Coleman v. Coleman, handed down January 12, 2016, the COA, by Judge Griffis, affirmed.
So, did the chancellor improperly modify the divorce judgment? Judge Griffis responds:
¶7. “A cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the chancellor essentially modified the divorce decree and that this modification was improper.
¶8. “This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and the chancellor stated in his judgment that “the parties are no longer married, the equities need to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s decision was based upon the partition statutes and he did not modify the divorce decree, the Court finds this issue without merit.
And did the chancellor abuse his discretion in how he awarded title and adjusted the equities? Again, Judge Griffis:
¶9. When parties seek a partition of land, “the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title.” Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and determine all claims of the several cotenants . . . .” Id.
¶10. Generally, “a partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)). Robert and Beverly agreed that the home could not be divided in kind and that it should be sold under statute. They also agreed to a private sale to allow Beverly to purchase the home. A chancellor may order the sale of property and “a division of the proceeds among the cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004). As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities between and determine all claims” of Robert and Beverly and divide “the proceeds” between Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11.
As for how the chancellor adjusted the equities, the COA went through the court’s analysis, and found it proper that Robert was awarded his equity at the time of the divorce plus its appreciation, and Beverly was awarded her equity at the time of the divorce, plus its appreciation, plus the additional equity that accrued over the years due to her payment of the mortgage debt. The COA found no merit in Robert’s argument.
Most crucially, the trial judge’s findings were supported by substantial evidence:
¶15. Keeping in mind the appropriate standard of review, this Court holds that the chancellor’s findings of fact and conclusions of law are supported by substantial evidence and are not an abuse of discretion. Robert did not provide any alternatives to the findings of the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The chancellor’s well-reasoned conclusions are supported by the record and the briefs of the parties. The partition statutes allow for the chancellor to divide the proceeds among the cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After inspecting the record, this Court is unable to see that Robert was denied any of his rights as a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.
This is not one of those spectacular, keeper cases that one whips out every few trials. It’s just a workaday, nuts-and-bolts decision that provides a glimpse into the quotidian matters that stream steadily through the chancery courts every day, and how the chancellors are called upon to fashion common-sense, practical solutions.
Temporary Support in a Paternity Case
December 2, 2015 § 2 Comments
Is there a right to a temporary hearing in a paternity case? If so, by what authority?
We know that chancellors in divorce cases may grant temporary relief per MCA 93-5-17(2), which allows the judge to make orders for “temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.”
In paternity cases, however, you can search high and low in Title 93, Chapter 9, dealing with paternity actions, and you will not find a similar statute conferring temporary authority. So, does that mean you can’t have a temporary hearing in a paternity action?
In a word, no.
The answer is in MCA 93-11-56(10), which states:
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 tests 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.
I have had a lawyer argue that if paternity is uncontested, then there is no pending determination, so temporary relief should be denied. I disagree for the reason that I believe the “determination of parentage” means a final judgment. If there is no final judgment, then I think temporary relief is appropriate, as it would be in a divorce.
So, is the court limited by the language of the statute to temporary support only, leaving the parties to play tug-of-war with the child until a final hearing can be had? I think that would be an absurd result. Section 93-11-65 gives the court general authority to hear custody determinations. Chancery courts are charged to do what is in the best interest of the child. In my opinion, the court must act.
Next time you are asked by a chancellor by what authority you are asking for temporary relief in a paternity case, cite MCA 93-11-65(10). You won’t find it among the paternity statutes.
As a side note, our legislature has amended the custody and support statutes repeatedly to accommodate requests by DHS to address issues they have faced. As a result, we have a mish-mash of conflicting and unclear language, some of which is difficult to harmonize with standard practice in chancery court. One of many examples is the TPR statute that was clearly amended to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between chancery and county court actions where appropriate, and remove the ambiguities.
When is Appointment of a GAL Required?
November 4, 2015 § 1 Comment
There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.
Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.
The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.
Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.
Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?
Judge Fair, for the majority, described the difficulty:
¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.
Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?
The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:
¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.
Miss. Code Ann. § 43-21-105(l) (Supp. 2014).
…
¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.
The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.
It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.
The Presumption from Family Violence
September 30, 2015 § Leave a comment
MCA 93-5-24(9)(a)( i ) creates a rebuttable presumption that it is not in a child’s best interest to be placed in the custody of a parent who has a history of family violence (paraphrased). It’s a topic about which we have posted here before.
Larry and Deidre Hammonds both sought custody in a divorce case between them. Deidre was awarded temporary custody, but Larry filed for emergency custody and modification after Deidre and her 15-year-old daughter by another marriage, Courtney, were involved in a physical altercation that resulted in Deidre’s arrest for domestic violence. Larry’s and Deidre’s own daughter, Angelina, was not present at the time. The charges were later dropped. Courtney went to live with an aunt in N. Carolina, and Deidre filed a petition charging that Larry was wrongfully withholding Angelina’s custody from her. The chancellor ordered that the child be returned to her, finding no showing of immediate or irreparable harm. The court did, however, order that there be no contact between Angelina and Courtney unless supervised by Deidre.
The parties entered into a consent on all issues, including custody, and, following a trial, the judge awarded the parties joint legal custody. Deidre was awarded sole physical custody, and the restrictions as to Courtney were eliminated. Larry filed for rehearing per MRCP 59, but was overruled. Larry appealed on several issues, but we focus here on his claim that the chancellor erred by not giving proper consideration to the family violence.
In an opinion rendered September 15, 2015, in Hammonds v. Hammonds, the COA affirmed. Judge Barnes addressed the domestic violence issue for the court:
¶26. After the physical altercation between Deidre and Courtney, the chancellor had ordered that Courtney must be supervised by Deidre when interacting with Angelina. However, this restriction was rescinded in the court’s final judgment. Larry argues the chancellor “erroneously overlooked” this issue of family violence in awarding primary physical custody to Deidre. He cites Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013), which states there is a “rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody of a parent who has a history of perpetrating family violence.” This presumption “may be only be rebutted by a preponderance of the evidence,” and:
In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:
1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer’s treatment program;
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
Miss. Code Ann. § 93-5-24(9)(a)(ii) & (iii).
¶27. However, in the order denying Larry’s motion to alter the judgment, the chancellor explicitly addressed Larry’s claim and discussed the statute, stating:
The presumption [from the statute] comes into existence by showing either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. . . . [T]he Plaintiff’s own child, Courtney, was a behavioral problem in the household.
On one occasion[,] the Plaintiff and her child, Courtney, engaged in a dispute which resulted in physical aggression. Criminal charges were filed and later dismissed. There were also allegations regarding an altercation between the Defendant’s child and the Plaintiff. [Fn omitted ] No criminal charges were filed. The record is filled with testimony regarding each party yelling, cursing, hollering and screaming in the household and at the children.
. . . .
Despite the chaos, the Court finds that neither party has a history of perpetuating family violence on any household member and that neither has been responsible for an incident of family violence that has resulted in serious bodily injury.
In a similar case, C.W.L. v. R.A., 919 So. 2d 267, 271-72 (¶¶12-17) (Miss. Ct. App. 2005), we upheld a chancery court’s finding that this statute was inapplicable because there was no “pattern of family violence,” and the testimony of the parties at most “documented general yelling and screaming which, on a few occasions, resulted in slapping and perhaps one incident of choking[,] . . . and there w[ere] no serious or even moderate injuries resulting from the same.” Reviewing the evidence in the present case, we find no abuse of discretion in the chancellor’s findings.
There was no abuse of discretion because the chancellor applied the proper legal standard that there must be either a history or pattern of violence, or there must have been serious physical injury, neither of which were found to be present here. And the evidence supported the chancellor’s findings. Before you invest too much of your custody case on this presumption, make sure that your evidence establishes the prerequisite history and/or injury.
When to Appeal from Denial of a Probated Claim
September 28, 2015 § Leave a comment
We should all know by now that a judgment that disposes of fewer than all of the contested issues in a case, or as to fewer than all of the parties, is not final and appealable, per MRCP 54(b).
So, consider this case …
You represent a creditor who has timely probated a claim against an estate. The executor files a contest to your client’s claim and notices it for hearing. At the close of the hearing the chancellor renders a bench opinion denying your client’s claim and enters a judgment to that effect. Now your client wants to appeal.
… what is your appeal time?
On one hand, the judgment denying the probated claim obviously disposes of fewer than all of the contested issues in the case, and fewer than all of the other parties are finally affected (i.e., other creditors, heirs or beneficiaries, etc.). So is an appeal barred by R54(b)?
On the other hand, your client’s involvement in the case is most assuredly concluded. The estate will proceed on its merry way without your client’s further involvement. And it could take months or even years for the court to wind up the estate and enter a final judgment closing it. Why should your client have to wait.
The question did arise in the recent COA case, Estate of Holmes: Holmes v. Turner, decided September 1, 2015. In that case, Becky Turner and her nephew, Brett Holmes, were in a dispute over a claim that Brett probated against the estate of Frances B. Holmes. The chancellor denied the claim and Brett appealed. Becky asserted on appeal that the court’s order or judgment overruling the claim was not a final, appealable judgment, and that, therefore, Brett’s appeal was untimely. In footnote 3, at ¶16, Justice Maxwell, writing for the court, disagreed with Becky’s position:
Becky asserts this order was not final and appealable, comparing it to the interlocutory order in the lawsuit-within-an-estate case In re Estate of Drake, 134 So. 3d 328 (Miss. Ct. App. 2013). But in contrast to the order in that case, the chancellor’s order here finally resolved the probate claim by Jimmy’s estate that Brett lodged against Frances’s estate. Further, both the Mississippi Supreme Court and this court have exercised appellate jurisdiction over timely appeals from orders either allowing or disallowing claims against still-open estates. E.g., In re Estate of Petrick, 635 So. 2d 1389 (Miss. 1994); In re Estate of Ladner, 911 So. 2d 673 (Miss. Ct. App. 2005).
That sort of obliquely says that the time to appeal is within thirty days of the order or judgment denying the claim, but it does not come right out and say so.
There actually is a case, however, that directly answers the question. In Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987), Braxton contested Johnson’s claim. Johnson prevailed, and Braxton did not immediately file an appeal, but rather waited until the judgment closing the estate was entered. The MSSC said this:
The question therefore is whether the time for an appeal for an administrator or executor unhappy with a decree allowing a contested claim runs from the date of such decree or from the date of the decree finally closing the estate. Darryl has not seen fit to cite this Court with any apposite authority supporting his response to Johnson.
We agree with Johnson, that the time for any appeal from a chancellor’s decision on the claim started on the date of the decree allowing it.
Miss. Code Ann. § 91-7-165 is the statutory procedure for contested creditors’ claims. Miss. Code Ann. § 11-51-9 recognizes final decrees include “matters testamentary and of administration …” Miss. Code Ann. § 11-51-99 specifically authorizes executors or administrators to appeal from any decree affecting them in their fiduciary capacity.
While the specific jurisdictional question raised by Johnson has never been addressed by this Court, it appears that appeals by administrators or executors unhappy with a decree allowing a contested claim have generally been taken from that decree. See: McKellar’s Estate v. Brown, 404 So.2d 550 (Miss.1981); Wooley v. Wooley, 194 Miss. 751, 12 So.2d 539 (1943); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926).
That the administrator or executor’s time to appeal begins to run from date of the decree allowing the claim is supported by most of the authorities from other states which have addressed this question. See: Parsons v. M.E. McCabe & Son, 127 Kan. 847, 275 P. 173 (1929); In re Swanson’s Estate, 239 Iowa 294, 31 N.W.2d 385 (1948); In re Hildreth’s Estate, 113 Vt. 26, 28 A.2d 633 (1942).
There is, however, some contrary authority. See: In re Naegely’s Estate, 31 Cal.App.2d 470, 88 P.2d 715 (1939); In re Gooder’s Estate, 68 S.D. 415, 3 N.W.2d 478 (1942); In re Allen’s Estate, 175 Wash. 65, 26 P.2d 396 (1933).
We find the better view is that time for an appeal should run from the date of the decree on the claim.
The efficient and orderly administration of estates and payment of all just debts without unjustified delay compels our conclusion. To permit an administrator to wait until an estate is otherwise ready for closing before deciding whether or not to appeal a decree allowing a claim would countenance outrageous postponements in paying the indebtednesses due by the estate. Moreover, an administrator cannot close an estate until there has been a final adjudication as to precisely what debtors are due by the estate, which he has a duty to pay. See: Miss.Code Ann. § 91-7-291; Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846 (1938); Walker v. Woods, 166 Miss. 471, 148 So. 354 (1933).
The time for taking an appeal from the November 8, 1982, decree having long since expired, this Court is without jurisdiction to hear any defense to Johnson’s claim against the Philyaw estate. Miss. Code Ann. § 11-51-5.
Philyaw deals with the time for an administrator or executor to appeal from a ruling adverse to the estate, but there is no logical reason why the same rationale should not apply to a creditor appealing from an adverse ruling. It’s that goose-and-gander thing.
Essential Jurisdictional Facts for Divorce
September 9, 2015 § 9 Comments
There are four fundamental facts you need to know about divorce in Mississippi:
- Venue is jurisdictional.
- Residence is jurisdictional.
- There must have been a marriage for there to be a divorce.
- Pleadings are not evidence.
Knowing those four things, then, you need to make sure that you put proof in the record, most usually in the form of testimony, that establishes venue and residence — ergo jurisdiction — and that there was a marriage.
Here are the jurisdictional facts that need to be in the record for the court to exercise jurisdiction over a divorce:
- That there was a valid marriage. When and where were the parties married?
- When was the separation? Separation is not essential for the granting of a divorce, per MCA 93-5-4, but it helps the judge understand the context of the divorce. Many chancellors will want you to establish that, despite the non-separation, they have not had consensual sexual intercourse.
- Where is venue? For a fault-based divorce, the case must be filed in: (1) the county where the defendant resides; or (2) the county where the plaintiff resides if the parties lived in that county up to the time of the separation and the plaintiff has continued to live there; or (3) the county where the plaintiff resides if the defendant is a non-resident or not to be found in the state. If the ground for divorce is solely irreconcilable differences, the complaint may be filed in the county of either party. MCA 93-5-11. If the action is not filed in the proper county, the court has no jurisdiction, and the case must be transferred to the proper county, per MCA 93-5-11 and MRCP 82(d).
- Is there the requisite residential period? One of the parties must have been a bona fide resident of the State of Mississippi “within this state” for six months “next preceding” the commencement of the case. That means that there must be six uninterrupted months of actual residence inside the state. It is not enough to move here four months before filing and claim that you actually changed your residence to Mississippi two months before moving here, or to stitch together several periods of residency to make six months. The six-month period does not apply to U.S. military actually stationed in Mississippi, provided that the member resided with the spouse in Mississippi, and the separation occurred in Mississippi. Residency must not have been acquired to secure a divorce. MCA 93-5-5.
Don’t forget the UCCJEA allegations if custody is an issue.
Just because you plead all of the jurisdictional requirements, that does not prove anything because pleadings are not evidence, and the only way to prove something is to get evidence into the record — meaning the trial transcript.
I find that even experienced lawyers fail to get this vital proof into the record in some cases. It happens primarily in cases where the plaintiff’s attorney calls the other party adversely as the first witness. Those jurisdictional fact questions somehow never get asked. Maybe the attorney is afraid that the adverse party will deny residency or something similar. Maybe the attorney is more preoccupied with confronting the cheater with videos, or making him admit he squandered the family fortune gambling. Maybe it’s simple oversight. Whatever, it should not be left up to the judge to inquire about these jurisdictional nuances.
Modifying Joint Legal Custody
September 8, 2015 § 2 Comments
Clayton and Melissa Hickey represented to a chancellor that they could get along well enough to warrant a joint-custody arrangement, and the judge granted them an ID divorce based on their assertion.
Their agreeableness, however, proved less than satisfactory to Melissa. She petitioned the court to modify joint legal custody to grant her sole legal custody based on a running course of disagreements over things such as: whether day care was a “need” of the children to which Clayton should contribute; which school the children should attend; whether Melissa’s boyfriend should be allowed to pick up the children from school; and other differences of opinion.
The chancellor agreed with Melissa and found that the disagreements were a material change in circumstances, and that the children were thereby adversely affected, meriting modification. Clayton appealed.
In Hickey v. Hickey, handed down December 16, 2014, the COA reversed. Judge Roberts wrote for the court:
¶ 29. In Goudelock v. Goudelock, 104 So.3d 158 (Miss.Ct.App.2012), this Court reviewed a chancellor’s decision to modify joint physical and legal custody of a child. Approximately seven months after the divorce, the ex-wife sought to obtain sole physical and legal custody of the child. Id. at 160 (¶ 3). The chancellor found that it was in the child’s best interest for the ex-wife to have sole physical and legal custody of the child. Id. at 162 (¶ 17). This Court found no merit to the ex-husband’s claim that the chancellor had erred. Id. at 164 (¶ 25). We noted that “the parties had not agreed on which school [the child] would attend,” and the ex-husband’s “failure to consent to certain dental procedures resulted in the premature extraction of [the child’s] tooth.” Id. at (¶ 23). The child’s dentist had recommended measures to avoid further decay of teeth that would lead to extraction without treatment. Id. at 161 (¶ 12). Because the child suffered from hemophilia, an extraction was potentially dangerous. Id. The ex-husband refused to allow the child to obtain treatment in Jackson, so the child’s teeth remained untreated for approximately seven months. Id. Consequently, the tooth decay progressed to the point that the child had to undergo an extraction. Id.
¶ 30. Here, there is no evidence that the children had any unusual medical needs, and there was no evidence that the children’s medical needs had been neglected in any way. The supreme court has held that isolated incidents do not justify a change of custody. Touchstone, 682 So.2d at 378 (quoting Smith v. Jones, 654 So.2d 480, 487 (Miss.1995)). “[I]t must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant a change of custody.” Id. (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)). In Lipsey v. Lipsey, 755 So.2d 564, 565 (¶ 4) (Miss.Ct.App.2000), this Court held that a chancellor erred when he modified child custody. We based our decision on the fact that “the chancellor gave no reason for modifying custody except for citing the parties’ inability to cooperate with one another.” Id. at 566 (¶ 7). This Court stated that it “will not … allow a change in custody when the child has exhibited no adverse impact and [the child] is equally cared for by both parties.” Id. at 567 (¶ 8).
¶ 31. Based on the record before us, there is no evidence that the children had been adversely affected by the fact that their parents had joint legal custody. The record is simply silent in that regard. Nothing in the record indicates that the children were unhappy, or that any of their needs had been neglected. Because the chancellor did not find that the children had been adversely affected in any way by Clayton and Melissa’s disagreements, we are compelled to follow the supreme court’s precedent and reverse the chancellor’s judgment. Consequently, we render a judgment reinstating Clayton and Melissa’s joint legal custody.
I wonder how this holding meshes with MCA 93-5-24(6), which expressly states that “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Does Hickey add an adverse effect requirement to the statutory language? If so, why? May a statute be amended by judicial fiat? What if the legislature’s intent was to eliminate the familiar adverse-effect requirement in custody modifications from joint-custody arrangements?
MCA 93-5-24 defines all forms of custody, including exclusive or sole, joint physical, joint legal, and joint physical and legal, so I don’t believe the legislature intended subsection 6 to apply only to forms of custody other than legal; in other words, joint legal custody is not in some undefined category.
What then is the standard of proof applicable in modification of joint legal custody? Is it material change + adverse effect + best interest à la Hickey and the cases dealing with modification of custody in general? Or is it material change only, as provided in MCA 93-5-24(6)?
I pointed out the statutory language in a recent post dealing with the practicality of joint custody.
SOL and the PSA
September 2, 2015 § 7 Comments
We visited the COA decision in Moseley v. Smith here before. It’s the 2014 case in which the importance of a hold-harmless agreement in a PSA was underscored when the COA held that, although the husband’s underlying debt obligation may have been discharged in bankruptcy, his obligation to his ex-wife based on a hold-harmless clause was not.
There’s another aspect of that case that merits your attention.
On appeal the ex-husband argued that his ex-wife’s claim against him was barred by the three-year statute of limitations (SOL) applicable to contract claims. His position was supported by the case of D’Avignon v. D’Avignon, 945 So.2d 401 (Miss. App. 2006), which held that property division matters in a property settlement agreement (PSA) are governed by the three-year SOL that applies to contracts.
In Moseley, however, the COA changed its position and held that all PSA provisions are incorporated into the court’s final judgment of divorce and, therefore, the seven-year SOL governing enforcement of judgments applies.
Two thoughts:
- Remember that SOL is an affirmative defense that must be asserted by the party who claims it. It is not an automatic bar to the action, but rather a defense that must be affirmatively pled. In a recent case in my court the parties litigated the issue whether the ex-husband was in contempt for non-payment of installment lump-sum alimony. Some of the early payments were due more than seven years before suit was brought. No one raised a SOL issue; therefore there was no bar to obtaining a judgment on those unpaid amounts.
- Before a judgment expires, you can renew the judgment per MCA 15-1-43. The extension is for a period of seven additional years. Most property provisions of PSA’s are resolved before that initial seven-year period expires, but some do not.
The Practicality of Joint Custody
August 10, 2015 § 7 Comments
We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.
When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).
Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.
Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.
Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.
Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.
In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.
That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.
This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.
One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.
An Exception to the Slayer Statute
August 6, 2015 § 1 Comment
Only yesterday I posted here about the danger posed by the untreated mentally ill in society.
Last week the MSSC handed down a decision in a case involving a “severely mentally ill man,” a homicide, and an adjudication at the trial level that he was not to inherit from his victim. The court reversed and remanded.
Here is the brief statement of grisly facts from the opinion by Justice Randolph in Estate of Armstrong: Armstrong v. Armstrong, handed down July 30, 2015:
¶2. On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989. [Fn omitted] Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
¶3. Joan’s death certificate listed her cause of death as “contusion of brain with subdural and subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple strikes to her head.
John, who experienced delusions and hallucinations and had been diagnosed as paranoid schizophrenic, admitted to the police and his sister that he had killed his mother. He was found by the circuit court not to be competent to stand trial, and was sent to Whitfield until he might become competent to stand trial.
Joan’s testate estate was opened, and John, along with his siblings, were beneficiaries. The executor filed a motion to declare John’s devise void, pursuant to MCA 91-5-33, known as the “Slayer Statute,” which provides in part as follows:
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
A guardian ad litem was appointed. She defended the motion on several grounds, but primarily on the basis that the executor failed to show that John had willfully caused Joan’s death as prescribed in the statute. The chancellor found that willfulness as provided in the statute had to be interpreted in a civil, not criminal, context, and that John’s willfulness was evidenced by:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John, “feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and felonious murder of Joan.
The chancellor granted the motion, and John’s GAL appealed.
In a case of first impression, the MSSC reversed and remanded the case to the chancery court for a determination whether John was insane at the time of the killing:
¶22. It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.
¶23. In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used by him for the purpose,” and “was no more his act, in the sense of the law, than if he had been impelled by irresistible physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)).
¶24. While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is not the duty of this Court to determine public policy. If the law as it now exists is in need of change, that task is for the Legislature.
A few thoughts about this case:
- Does this case forebode a shift in the standard for criminal responsibility?
- My hat is off to attorney Stacie Zorn for her work as GAL. She did exactly what a GAL in that role is supposed to do, and she accomplished a change in the law in the process.
- Operation of the “Slayer Statute” is a subject I have posted about here before.
- I had written yesterday’s post about mental illness week before last and scheduled it for publication yesterday. The MSSC’s Armstrong Estate decision came down in time for the resulting juxtaposition.
The Better Chancery Practice Blog 