Statutes | The Better Chancery Practice Blog

Demoting General Relief

July 28, 2015 § 5 Comments

One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.

And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.

Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:

A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.

The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.

In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:

“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”

No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.

Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.

Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:

“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”

Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.

I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.

It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.

When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.

The Unanswered Divorce Complaint

July 21, 2015 § 14 Comments

You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.

On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.

On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?

Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
[Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.

BAH, Humbug

July 8, 2015 § 2 Comments

If you practice law in or around Biloxi, Columbus, Meridian, or any locale where military are among your clientele, you are no doubt acquainted with the concepts of BAH and BAS.

BAH is military-ese for Basic Allowance for Housing, and BAS is the acronym for Basic Allowance for Sustenance (i.e., groceries).

The question whether BAH and BAS should be included in income for calculation of child support has often percolated up in chancery court, and the answer has varied. Some of the confusion, perhaps has been due to the fact that BAH and BAS are not included in taxable income. The COA confronted the issue in a recent case.

In Price v. Snowden, Tim Snowden had agreed to pay 14% of his adjusted gross income (AGI) to Donna Price as child support for a child he had fathered outside marriage. When it came time to pay, Tim did not include BAH and BAS in his income for calculation of child support, apparently on advice of a CPA and after consultation with DHS. Donna sued for contempt based on underpayment. Tim took the position that BAH and BAS were not includable in his income for child support purposes.

In a decision handed down June 30, 2015, Judge Griffis wrote for the court:

¶10. Donna claims that Tim has underpaid his child-support obligation. The child-support order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines.” The order also provides that this amount is to be adjusted annually.

¶11. We begin with the child-support guidelines. Mississippi Code Annotated section 43-19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:

[G]ross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; [the] absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.] (Emphasis added).

¶12. When the original order was entered in 2004, Tim was an officer of the United States Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation. His mother-in-law claimed she read the statute and “double-checked” with social services to determine that child-support calculations were to be based solely on taxable income.

¶13. Here, Donna and Tim agreed to an escalation clause to determine the appropriate amount of child support. Previously, this Court noted that “[t]he parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim both agreed to the escalation clause as written. Tim has not contested the validity or enforceability of the clause in this action. Thus, it is a valid clause in their agreement.

¶14. In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court considered the language “any other form of earned income” in section 43-19-101(3)(a), containing the provisions commonly referred to as the child-support guidelines. Sue and William Bustin were divorced, and William was ordered to pay child support for two children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2). After the divorce, William was promoted to be the pastor at his church, and was given a housing allowance of $1,500 per month. Id. William brought a motion to modify his child support obligation, for contempt, and for sanctions, while Sue responded with her own motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance should be included in the calculation of his gross income. Id. at (¶1). This Court held:

It appears from a plain reading of the text that the statute addresses the issue of income and what is included when tabulating child support. The phrase “any other form of earned income” would seem to include items in a person’s salary package. William is given that housing allowance as part of his salary from the church. If William went to a bank tomorrow and applied for a loan, he would most definitely list his housing allowance as income in order to show that he would be able to repay his loan. Salary from one’s employer is one of the key elements when estimating everything from income taxes to interest rates on a bank loan.

Moreover, computing one’s income for taxation is different than computing one’s income for child[-]support purposes. Our state must protect the best interests of the child. One of the ways Mississippi accomplishes that goal is child[-]support enforcement through statutes. Our statutes delineate what is to be considered as gross income for the purposes of computing child support. This issue is also without merit.

Id. at 1140 (¶¶10-11).

¶15. Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result. Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement of actual income and expenses.” The Rule 8.05 form provides for the detail of income and expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,” requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount is included in the calculation for the chancellor to determine gross income. Similarly, the Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,” requires a party to disclose “[m]onthly mortgage or rent payments.”

¶16. We find that Tim’s BAH and BAS payments are a “form of earned income” under section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing and subsistence, and these payments were earned by Tim and assisted him with the payment of his monthly expenses.

That settles that. BAH and BAS must be included in AGI for calculation of child support. That’s going to smart some for the payor, because BAH and BAS are gross sums from which no taxes are deducted. And it’s a nice development for the payee, because it’s going to result in a bigger sum of child support. For lawyers, it answers a question that has heretofore gone unanswered in Mississippi case law.

A few morsels for thought:

At Meridian Naval Air Station, two student pilots, A and B, both apply for on-base housing the same day. Pilot A is assigned the last available base house; he gets no BAS or BAH. Pilot B has no choice but to live off-base due to the unavailability of base housing, and he receives BAS and BAH as a result. Both would pay substantially different amounts in child support. Fair?
Pilot B does not pocket the BAH. He pays all of it and some from his own pocket to rent a house in Meridian. Yet he will be taxed 14% + in child support on that amount. It is a legitimate point that not everyone gets their housing paid by their employer, but the fact is that people enlisting in the military do so with the understanding that, in return for generally lower pay than in the private sector, they will be provided with amenities such as housing.
Pilot A will receive free housing and meals, yet the value of that will not show up on his paycheck stub or on his tax return so it can be quantified for child support calculation. Fair?
Both pilots A and B have their groceries subsidized at the base commissary. That benefit does not show up on a pay stub or tax return, yet it can amount to thousands of dollars a year, and it escapes child support calculation. Fair?

I don’t have any answers to those questions. I’m just laying the groundwork for someone else’s appeal, I guess.

Does a Custody Decision Have to Pass Through Joint Custody?

June 22, 2015 § 2 Comments

We’ve talked here before about the principle that, where the parties have consented to allow the chancellor to adjudicate custody, the chancellor may award either party custody, and may award joint custody. That was decided by the MSSC in Crider v. Crider in 2012, and has been elaborated on in cases applying it since.

Does Crider, then, require the chancellor to consider whether joint custody should be awarded before awarding either party sole custody? That was the issue confronting the COA in the case of White v. White, decided June 16, 2015.

Maegan White and Christopher White consented to an irreconcilable differences divorce, with custody of their children, Garrett and Harley, as a contested issue. The chancellor accepted the recommendation of the GAL and awarded sole custody to Christopher, and her opinion made no mention of the possibility or consideration of joint custody. Meagan appealed, arguing that the chancellor’s failure to consider joint custody was error. She contended that Crider and Clark v. Clark, 126 So.3d 122 (Miss. App. 2013) required the judge to consider whether joint custody was in the best interest of the children.

Judge Roberts addressed her argument for the COA:

¶19. Maegan’s interpretation of both Clark and Crider is faulty. In Clark, this Court reversed and remanded a chancellor’s decision to award sole physical custody to the mother, requiring the court to consider the propriety of joint custody on remand. Both parents had requested sole physical custody of their child and submitted the issue to the court for determination. After hearing testimony of the parties, the chancellor had noted: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” Clark, 126 So. 3d at 124-25 (¶10). In reversing the chancery court’s judgment, this Court noted, “Based on our reading of the transcript, it appears that the chancery court may have concluded . . . that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of [the child].” Id. at 125 (¶12). Noting our concern that the chancery court had incorrectly concluded it was not authorized to consider joint custody, as neither party had requested it, we reversed and remanded for further consideration.

¶20. Similarly, in Crider, parents in an irreconcilable-differences divorce each requested sole custody of their child. The parents submitted the issue of custody to the court for determination. After considering testimony presented and conducting an Albright analysis, the chancellor found that, even though neither parent requested joint custody, it was in the child’s best interest. Thus, she awarded joint custody to the parents for a two-year period. The mother appealed, noting that Mississippi Code Annotated section 93-5-24(2) (Rev. 2013) [footnote omitted] prohibited a chancellor from awarding joint custody unless specifically requested by the parties. This Court agreed and reversed the chancellor’s judgment, prompting the father to petition for certiorari with the supreme court. After a thorough analysis of the statute and its meaning, the supreme court stated:

It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent.

Crider, 904 So. 2d at 147 (¶12). The supreme court further noted that the chancellor is in the best position to evaluate the “credibility, sincerity, capabilities and intentions of the parties,” and that it is “incumbent upon a chancellor not to award joint custody” unless in the best interest of the child. Id. at (¶13). The court ultimately held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in [section] 93-5-24(2).” Id. at 148 (¶15). Finally, the court affirmed the chancellor’s judgment and noted that a “chancellor may award joint custody in an [irreconcilable-differences] divorce, when the parties request the court to determine custody.” Id. at 148-49 (¶17) (emphasis added).

¶21. Maegan incorrectly interprets both Clark and Crider to require a chancellor to consider joint custody when faced with an irreconcilable-differences divorce. The chancellor “is bound to consider the child’s best interest above all else.” Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996). In both Clark and Crider, the chancellors found joint custody to be in the child’s best interest. In Clark, the chancellor incorrectly awarded sole custody to one parent despite the finding that joint custody was the child’s best interest; in Crider, the chancellor awarded joint custody because that was in the child’s best interest, and the supreme court affirmed that award. Crider and its progeny allow—not require—a chancellor to award joint custody when in the best interest of the child. In the present case, the chancellor found that it was in Garrett and Harley’s best interest to give custody to [Christopher]. Though the chancellor’s order makes no mention of joint custody, he is not required to do so. The chancellor’s primary duty is to consider the best interests of the children and make a determination of custody based on that concern. There is no evidence that the chancellor disregarded the children’s best interests when determining custody. The chancellor’s custody award to [Christopher] was not error.

Not much to add to that, except to cite you to this post on Easley v. Easley, and this one with some random thoughts on joint custody, which might make your collection of authorities on this point complete.

Asking Permission Rather than Forgiveness

June 18, 2015 § 3 Comments

That old saw about it being easier to ask forgiveness than to get permission may apply in some aspects of life. It does not, however, apply in guardianships.

I wish I had a few bucks for every time I have seen a lawyer open a guardianship, qualify the guardian, and then go off and file a PI or wrongful death case “for the benefit of the ward.” Later, the attorney has to beg forgiveness, because he had no permission.

MCA 93-13-27 spells out specifically what is required:

All suits, complaints, actions and administrative and quasi judicial proceedings for or on behalf of a ward for whom a general guardian has been appointed shall be brought in the name of the general guardian for the use and benefit of such ward, be such general guardian that of his estate or that of his estate and person or that of his person only. And all such actions, suits or proceedings shall be commenced only after authority has been granted to such general guardian by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony. A certified copy of said order authorizing such suit or proceedings shall be attached to the complaint or instrument or document originally filed as commencing such action, suits or proceedings. If such proceedings be commenced by act of said general guardian, then on request therefor a certified copy of said order or decree shall be submitted by said general guardian as evidence of his authority to the person or persons with or through whom the guardian may deal in performing any act commencing such proceedings. [Emphasis added]

So before you go crashing off into circuit, county, or district court, you must: (a) file a sworn petition in the guardianship case outlining what it is you propose to do; (b) set the matter for hearing; and (c) present oral testimony in support of your petition. It should go without saying that the petition can only by filed by a guardian who has been properly appointed by the court, has posted whatever bond was required, has taken the oath, and has been issued letters of guardianship.

When the lawsuit is filed, a certified copy of the order authorizing it must be attached as an exhibit to the complaint.

There can be some ramifications here. If I were a defendant, I think I might sit back and let the statute of limitations run on the claim, and then file to dismiss the lawsuit for lack of standing. How would you feel as the attorney for the guardian in that situation?

A Procedural Peculiarity

June 11, 2015 § Leave a comment

We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.

It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.

Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.

Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.

In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.

In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.

Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.

The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.

In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.

This was unquestionably the right conclusion as to issue (1).

As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.

With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:

You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
The chancery court’s order quieting and confirming disposed of any adverse possession claims.
This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.

In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.

Right to Appointed Counsel in a TPR Case

June 1, 2015 § 5 Comments

If any area of family law has undergone what could unquestionably be considered an upheaval recently, it would have to be termination of parental rights (TPR), per MCA 93-15-101, et seq.

The first shot was fired in Chism v. Bright, about which we previously posted here. Chism is the MSSC case that interpreted MCA 93-15-103 to require that the statutory prerequisites be satisfied before the chancellor may consider whether any of the grounds for termination apply in the case. It was that case that caused us to question whether TPR as a private action between individuals was now extinct.

In Pritchett v. Pritchett, decided April 7, 2015, the COA took up the issue whether an indigent parent facing TPR is entitled to appointment of counsel. Judge Roberts, applying US Supreme Court precedent, concluded that such a right does exist. His reasoning:

¶9. As was outlined above, James claimed indigency and requested an attorney be appointed on three separate occasions, and the chancery court never addressed his requests, nor did it appoint an attorney to represent him. It is well established, through the Sixth Amendment to the United States Constitution, that an indigent defendant in a criminal case has a right to the assistance of counsel, specifically when a defendant’s loss of liberty may result; however, the case before us today is a civil case.

¶10. Nonetheless, it is also well established that “a parent’s desire for and right to ‘the companionship, care, custody[,] and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Further, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.” Id. In footnote three of Lassiter, the Supreme Court noted that “[s]ome parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.” The Supreme Court held in Lassiter that it would not be “‘prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary’ . . . since ‘the facts and circumstances are susceptible of almost infinite variation.’” Id. at 32 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). It also stated that “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel[,] not only in parental termination proceedings, but also in dependency and neglect proceedings[.]” Id. at 33-34. But the Supreme Court ultimately left the decision on whether to appoint counsel to be decided on a case-by-case basis by the state. At the time of Lassiter, statutes in thirty-three states and the District of Columbia provided for the appointment of counsel in termination cases. Id. at 34.

¶11. The termination of parental rights is a serious and permanent proceeding, one which effectively ends any ties between a parent and a child. The Mississippi Legislature recognized the seriousness of such an event and recommended that alternatives to the termination of parental rights be pursued “when, in the best interest of the child, parental contacts are desirable[.]” Miss. Code Ann. § 93-15-103(4). The Mississippi Supreme Court case of K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So. 2d 907, 909 (¶8) (Miss. 2000), also involved the question of whether a natural parent should be appointed an attorney in a termination-of-parental-rights proceeding. In K.D.G.L.B.P., the chancery court thoroughly questioned the natural mother about the lack of an attorney and whether she would represent herself. Id. at (¶9). She indicated that she would represent herself, she never asked for a continuance, and she did not indicate that she was unable to afford an attorney. Id. at 909-10 (¶¶9-10). The supreme court, in analyzing Lassiter, stated:

One of the most important factors to be considered in applying the standards for court[-]appointed counsel is whether the presence of counsel would have made a determinative difference. The Lassiter decision thus states that appointment of counsel in termination proceedings, while wise, is not mandatory and therefore should be determined by state courts on a case-by-case basis.

Id. at 910 (¶12). The supreme court went on to find that “the mother was granted a fair and adequate hearing.” Id. at 911 (¶14).

She was given ample notice of the proceeding in time for her to secure suitable counsel. At trial, she never asked for a continuance or for additional time to seek substitute counsel. Instead, she signified to the court that she intended to represent herself and that she was ready to proceed. Furthermore, on the day of trial, she did not even allude to the fact that her financial condition might have precluded her from being able to retain counsel. This argument was only raised in post-trial motions. Finally, the evidence supporting the chancellor’s decision to terminate the mother’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. Although the termination of parental rights is a serious judicial proceeding, a review of the record indicates that the chancellor’s actions ensured that the mother was provided a constitutionally adequate hearing as guaranteed by the Fourteenth Amendment.

Id.

¶12. The case before us is distinguishable from K.D.G.L.B.P. in that serious due-process concerns exist in this case that were not present in K.D.G.L.B.P. James claimed indigency in three letters filed with the chancery court and requested appointment of counsel. The record does not contain a response from the chancery court. Furthermore, James requested the chancery court assist him with securing transportation to the hearing. The only action taken by the chancery court was to “continue [the] matter for [James] to arrange transportation.” Since James was an inmate in MDOC custody, it appears disingenuous to say that he could arrange his own transportation. The hearing proceeded in James’s absence.

¶13. We simply are unable to conclude, based on the scant record we have, that the presence of counsel would not have made an outcome-determinative difference. As an illustration, James’s request to be present for the hearing could have been secured by his attorney filing a writ of habeas corpus ad testificandum, which would have required James’s presence at the hearing to testify. Such a common-law writ would command the custodian, MDOC, to bring James to the chancery court to testify. Mississippi Code Annotated section 9-1-19 (Rev. 2014) and Mississippi Code Annotated section 11-43-7 (Rev. 2012) provide chancery courts the authority to grant such writs as habeas corpus. Additionally, an attorney’s presence could have aided James with presenting the complex issue of the applicability of the section 93-15-103 to the present facts.

¶14. We reverse the chancery court’s decision and remand this case for the chancery court to determine the question of indigency and the necessity of appointment of counsel under Lassiter, and for the chancery court to make appropriate arrangements for James to be present and/or participate in the proceedings.

The message here is that TPR is serious and has constitutional implications that require heightened due-process requirements. The judge should inquire searchingly on the record whether the defendant understands the nature of the action and what is at stake, and whether the defendant is honestly capable of representing his or her own interests.

Carried to its logical extreme, I wonder whether any pro se party in any case is ever truly equipped to decide whether he or she should proceed without counsel? Is any lay person competent to make that determination without advice of counsel? No matter, all that is required under Lassiter and K.D.G.L.B.P. is a waiver on the record.

No Beneficiary = No Will

April 16, 2015 § 2 Comments

Ramon Regan was residing in a personal care home operated by Swilley. In 2008, Swilley arranged for a notary public to meet with Regan to help him prepare his will. The notary, Beckham, presented Regan with a pre-printed form, which Regan executed, and had properly witnessed. No attorney was involved.

The will specifically spelled out that it was Regan’s intent to make a testamentary disposition of his estate. It also mentioned that he had no surviving wife, and that he had had no children.

What the will failed to spell out, though, was who were to be the beneficiaries of his bounty. There were no specific or residuary beneficiaries named in the will.

After Regan died in 2011, Swilley filed a petition to probate the will. Elsie LeBlanc, Regan’s aunt, was determined to be his sole surviving heir. After Elsie died in 2013, her son Kenneth filed a caveat against probate of Regan’s will.

Kenneth filed a motion to declare Regan’s will invalid due to absence of any beneficiaries. Swilley responded that the document met the requirements of testamentary intent and attestation, and that parol evidence of Regan’s intent should be considered by the court.

The chancellor ruled that he was to look first to the four corners of the document to determine Regan’s intent. Since the document was not susceptible to multiple interpretations, but merely failed to name any beneficiaries, the court refused to consider parol evidence. The judge pointed out that he could not add language to the will, and that the absence of any named beneficiaries left him with nothing to interpret. He ruled that it was invalid to serve as a testamentary instrument. Swilley appealed, complaining that the chancellor erred in ruling the document invalid, and in refusing to consider parol evidence of Regan’s intent.

The COA, in the case of Estate of Regan: June Swilley v. Estate of LeBlanc, decided April 7, 2015, affirmed. Judge Carlton wrote for the unanimous court:

¶15. In the present case, Regan’s “Last Will and Testament” stated the following regarding the disposition of his property: “Upon my death, I want my property distributed as follows: All my estate, this includes monetary and real property.” As in In re Roland, [920 So.2d 539, 541 (Miss.App. 2006)] our review of Regan’s last will and testament reveals that the document contains no ambiguous language or imprecise description of a beneficiary. Instead, as the record reflects, Regan’s purported last will and testament simply failed to devise or bequeath Regan’s property because Regan failed to name or otherwise identify a beneficiary.

¶16. Because Regan’s last will and testament lacks ambiguity, we find that the chancellor correctly refused to allow parol evidence as to Regan’s testamentary intent. As the record reflects, to give effect to Regan’s will, this Court would have to insert a beneficiary’s name where the will completely failed to provide one. Although our precedent establishes that we construe a will in light of the circumstances surrounding the testator at the time he wrote the will, our caselaw also recognizes that “[c]ourts may not amend or reform a [w]ill, neither may courts add to or take from a [w]ill or make a new [w]ill for the parties.” Hemphill v. Robinson, 355 So. 2d 302, 306-07 (Miss. 1978) (citations omitted).

¶17. As reflected in the record, the invalidity of Regan’s purported last will and testament is rooted in the document’s failure to distribute any of Regan’s assets upon his death. Since Regan’s last will and testament failed to devise or bequeath his property to a named beneficiary, and since the document reflects no attempt within its four corners to identify a beneficiary, we affirm the chancellor’s decision declaring the will invalid and his refusal to admit parol evidence. Accordingly, this assignment of error lacks merit. [Footnote omitted]

Earlier in the opinion, the court noted that MCA 91-1-13 requires that all property, “real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.”

There is some other authority in the opinion pertaining to parol evidence that you might find useful.

I have had several cases in which someone wanted me to vary the unambiguous terms of the will via parol evidence. The usual situation is that dad had made it abundantly clear to everyone that he was going to change his will, but he died before he got around to it. Their argument is that the will was no longer his testamentary intent. If the document is unambiguous, that parol evidence simply will not vary the written document’s terms.

Naming Names

April 15, 2015 § 8 Comments

Requests for name changes are something every family practitioner encounters.

There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.

If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.

Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.

In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.

If you wish to change any birth fact 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, the judge will send you back to the drawing board.

Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.

Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.

Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”

An In Loco Parentis Case with a Twist

April 13, 2015 § Leave a comment

Gene and Eunieca Smiley were awarded custody of a minor child, Christopher, in a Memphis Juvenile Court proceeding. In addition, Eunieca’s cousin signed an agreed order giving the couple custody of her daughter, Alaina, in 2005.

Gene and Eunieca separated in 2009, but they nonetheless filed a proceeding to adopt Alaina. After the separation, Gene had moved to Memphis with Christopher, and Eunieca resided in Tishomingo with Alaina.

In November, 2010, Eunieca filed for divorce. That same month the adoption was granted (the natural mother had consented; there is no mention of a natural father). The adoption, however, was set later aside for reasons undisclosed in the opinion.

During the pendency of the divorce, Christopher was removed from Gene’s home for physical abuse. Gene conceded that he had gone overboard in whipping the boy with a belt, leaving bruises on the child’s back.

There was testimony of some creepy behavior by Gene involving inappropriate touching and handling little girls at his church and in his own home, and some inappropriate conduct with Alaina.

After a trial, the chancellor ruled that Gene’s had no standing to contest custody because his claim was based on in loco parentis, which the judge said was not adequate to confer standing. She also found that Gene had a history of family violence, and that there were insufficient safeguards to ensure Alaina’s safety when with Gene, so that he should have no visitation with the child, per MCA 93-5-24(9)(d)(i).

Gene appealed. The COA affirmed in part, and reversed and remanded in part, in the case of Smiley v. Smiley, decided March 31, 2015.

On the standing issue, Judge Irving wrote for the majority (Carlton dissented) that Gene did have standing, but that the chancellor correctly adjudicated custody. The court held that the judge’s treatment of Gene’s request for visitation to be cursory, and noted that the GAL in the hearing had reserved the right to make a recommendation on visitation until after hearing all the evidence, but she never did so as to give the judge a basis for finding insufficient safeguards. The court remanded for the chancellor to determine whether “adequate provision” could be made for Alaina’s safety as in the statute.

You should read the opinion to gain an appreciation of the scope of this fact-intensive case.

A few thoughts:

“I thought in loco parentis was dead” you might be thinking. Well, as between a natural parent and a third party, it is not alone enough to defeat the natural-parent presumption. As between two non-biological parents who have not adopted a child, however, in loco parentis is available.
Does it bother anyone else that separated parents with a divorce filed were allowed to adopt a child? As noted, the opinion does not tell us why the adoption was set aside.
The chancellor did not specifically address the Albright factors in ruling on custody; however, she did adopt the GAL report, which incorporated an Albright analysis, and the COA said that was good enough.
You need to read the code section cited above. It places custody and visitation limitations on the ability of one found to have been guilty of a history of domestic violence.

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