Statutes | The Better Chancery Practice Blog

“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One

May 14, 2014 § 5 Comments

Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.

COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.

Here’s Part One:

A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”

More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.

I. How a decision is made at the Court of Appeals

A. Background

The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.

The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.

Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).

B. Jurisdiction

Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.

The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.

Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.

MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.

The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.

THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).

The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).

Next: The Decision Process from initial Assignment Through Oral Argument

The Cost of Side Income

April 21, 2014 § 2 Comments

It often happens that one of the parties in a divorce has side income. By “side income” I am referring to extra income, usually in cash, received for services separate and apart from one’s primary employment.

Some examples could include cash that a party: receives for doing weekend painting; is paid as a part-time, fill-in clerk at a country store; earns for child care or sitting; takes in for yard work. The list is endless.

There is no question that when the proof shows that there is that additional income, it should be taken into consideration in calculating alimony or child support. The hard part is how exactly is the court supposed to quantify it? It’s the hard part because the proof usually ranges on from almost entirely lacking to at best vague and inconclusive. After all, it’s cash with no evidence trail.

That was the problem facing the chancellor in Burnham v. Burnham, decided April 8, 2014, by the COA.

The chancellor found that Matthew Burnham was earning some side income from farming, which was in addition to adjusted gross income from his primary employment at Jones County Community College in the count of $2,618.04. The judge ordered child support in the amount of $600 a month, which he explained was guideline support for the two children, plus an additional sum to account for the farming income.

Matthew appealed, complaining that the support, by guideline, should have been no more than $523.61, a difference of $76.39 a month.

Judge James, for the COA, found the chancellor in error:

¶18. The record indicates that Matthew’s adjusted gross income from Jones County Junior College is $2,618.04 per month. The trial court found that Matthew receives additional income from farming operations. However, there is no documentation that provides for the amount per month he receives from farming. It is also unclear whether Matthew still receives this supplemental income from farming.

¶19. Matthew argues that the appropriate amount for his child-support obligation for the two minor children is $523.61; which is twenty percent of his net income. The trial court ordered Matthew to pay $600 per month. The trial court based the child-support award on the net income Matthew receives from Jones County Junior College and cash received from the farming operation. However, there is nothing in the record to establish the amount of income received from the farming operation. The trial court imputed an undetermined amount of income to Matthew.

¶20. Matthew argues that a deviation from the child-support guidelines requires a written finding on the record explaining the need for such deviation. Miss. Code Ann. § 3-19-101 (Supp. 2013). The criteria for finding an appropriate deviation are as follows:

(a) Extraordinary medical, psychological, educational or dental expenses.

(b) Independent income of the child.

(d) Seasonal variations in one or both parents’ incomes or expenses.

(e) The age of the child, taking into account the greater needs of older children.

(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.

(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.

(h) Total available assets of the obligee, obligor and the child.

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

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

Miss. Code Ann. § 43-19-103 (Supp. 2013).

¶21. “The child support award guidelines are ‘ rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.’” Grove v. Agnew, 14 So. 3d 790, 793 (¶7) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 43-19-103 (Rev. 2004)). Thus, “[i]n the absence of specific findings of fact to support a deviation from the child support guidelines, the chancellor’s award is not entitled to the presumption of correctness under the statute.” Osborn v. Osborn, 724 So. 2d 1121, 1125 (¶20) (Miss. Ct. App. 1998).

¶22. After careful review of the record, we find no specific finding of fact to support deviation. Instead there is merely an order for Matthew to pay a seemingly arbitrary amount of $600. The ordered amount of support is almost twenty-three percent of his net income. There is no mention of any extraordinary circumstances that would warrant a departure from the child-support guidelines. Although the children attend private school, the maternal grandparents agreed to pay the tuition. Accordingly, we find that the trial court erred in deviating from the child-support guidelines without specific on-the-record findings.

I can’t quibble with the conclusion here that specific, on-the-record findings are necessary to support a deviation from the guidelines. Under this case, it appears that those findings would necessarily include not only why and how one or more deviation factors applies, but also what are the specific findings of the court as to how the additional sum is calculated.

I do have a minor quibble with the bold language above. If there is proof in the record that Matthew receives some farming income, even if it is unclear, doesn’t the chancellor’s finding that it exists resolve that issue? It is the judge’s job to make that call based on what he finds to be the credible evidence.

When you have a case such as this where the chancellor has not fleshed out his findings, file a R59 motion and ask the judge to support his findings in the record. Post-trial motions were filed in this case, but it is not clear whether that particular request was made.

Also, if you represent the party trying to benefit from the side income, always make sure you put some proof in the record to quantify it. Ask questions on cross examination to get a number or a range. Look at tax returns and get them into the record; sometimes people report at least part of side income to avoid IRS problems. Get youor client to testify to her experience (e.g., “When we lived together he would give me hundred dollar bills a couple of times a month for groceries, and he would peel them off of a thick wad of hundreds that he carried around.”)

Joint Custody and the Consent Divorce, and a Maxim Bonus

March 20, 2014 § 1 Comment

The COA decision in Keyes v. Keyes, handed down March 11, 2014, is noteworthy for a couple of points.

Melanie and Dustin Keyes entered into a consent for an irreconcilable differences divorce, leaving custody of their two children to the judge to decide. After a hearing, the chancellor awarded the parties joint physical and legal custody.

Melanie appealed, raising two issues: (1) the chancellor erred in failing to determine whether the parties could cooperate, which is a prerequisite to joint custody; and (2) the chancellor’s decision violated the maxim of equity that “equity delights to do complete justice, and not by halves.”

The COA affirmed. Judge Carlton wrote the opinion for a unanimous court (James not participating). Here’s her take on the first issue:

¶13. [MCA] Section 93-5-24(2) provides that in an irreconcilable-differences divorce the chancellor may, at her discretion, award joint custody “upon application of both parents.” In Crider [v. Crider], the parties filed a written consent to an irreconcilable-differences divorce and asked the chancellor to decide the issues of primary custody, property settlement, and support. Crider, 904 So. 2d at 143 [(Miss. 2005)] (¶3). The supreme court held “that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination.” Id. at 148 (¶15). The supreme court further 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. . . . To be sure, unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody. This is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.

Id. at 147 (¶¶12-13). “The Crider court held that it is logical that when both parties consent for the court to determine custody, they fulfill the ‘application of both parents’ requirement of section 93-5-24(2).” Phillips, 45 So. 3d at 695 (¶33) (citation omitted).

¶14. In the present case, the parties do not dispute that they both consented to the chancellor’s determination of custody and that the “application of both parents” requirement discussed in Crider was met. Therefore, we turn our focus to whether the chancellor erred in awarding joint custody because of the parents’ inability to “shar[e] joint custody cooperatively.” Crider, 904 So. 2d at 147 (¶13). The supreme court has concluded that section 93-5-24(2) “should be interpreted to allow the chancellor to award joint custody in an irreconcilable[-]differences divorce if it is in the best interest of the child.” Phillips, 45 So. 3d at 695 (¶33) (citing Crider, 904 So. 2d at 148 (¶16)).

The decision goes on to find that the chancellor did, in her analysis of the facts, adequately weigh the parties’ ability to cooperate, and that she was in the best position as the trier of fact to determine how to resolve conflicting evidence at trial for the best interest of the minor children. The court concluded that this issue lacked merit.

As for the maxim argument, Judge Carlton addressed it as follows:

¶18. Melanie next argues that the award of joint custody essentially ensures future litigation; therefore, the chancellor violated the maxim that “[e]quity delights to do complete justice, and not by halves.” Melanie asserts that future litigation is likely because the chancellor failed to determine in which county the children should reside or where they should reside once they begin kindergarten. Melanie and Dustin reside in different counties, and Melanie contends that the children will be put “in the unenviable position of shifting back and forth from home to home during the school year.”

¶19. In support of her argument, Melanie relies on this Court’s decision in Daniel v. Daniel, 770 So. 2d 562 (Miss. Ct. App. 2000). The chancellor in Daniel awarded both parents joint legal custody of their minor child, with custody alternating every two weeks. Id. at 563 (¶2). This arrangement was to continue until the child turned five and entered kindergarten, at which time the father would receive physical custody. Id. In affirming the chancellor’s determination of the custody arrangement, we stated:

We are aware of the fact that a practice of constantly alternating a child back and forth to each parent is not a habit that should be encouraged. The Mississippi Supreme Court has spoken on this issue on more than one occasion, ruling that it is not in the best interest of a small child to be shifted from parent to parent. However, in this case, we are mindful that the child is nearing the age of five[-]year[-]old kindergarten and has been subjected to the rotating custody order since the chancellor’s judgment was handed down on December 15, 1998. We therefore can see no reason why what has become the child’s regular routine should be interrupted. Nonetheless, we agree with the chancellor that at such time as the child begins kindergarten, it will be necessary for the child to maintain the stability that is crucial at the beginning stages of her education.

Id. at 567 (¶15) (internal citations and quotation marks omitted).

¶20. In the present case, Melanie argues that the parties’ two minor children need the same stability given to the minor child in Daniel. She asserts that the parties’ children should reside with her in Warren County, where they currently attend daycare. In light of the Court’s decision in Daniel, and to provide the parties’ children with the stability that is crucial at the beginning stages of education, Melanie asks that the case be remanded with instructions for the chancellor to determine which parent should be the primary physical custodian.

¶21. As previously discussed, the decision to award the parties joint legal and physical custody was within the chancellor’s discretion since the parties agreed to submit this issue to her for determination. Bearing in mind our limited scope of review on appeal, we find that the chancellor did not commit manifest error in awarding joint custody. Therefore, this issue also lacks merit.

Bravo to Melanie’s appellate counsel for making the maxim argument. I thought it was apropos. Don’t let the fact that the COA didn’t buy the argument in this case discourage you from asserting claims based on the maxims in other cases. I’ve stressed here before that the maxims underly all actions in and relief granted by chancery courts, so they are always a legitimate basis for advocating for your client’s position.

No Great-Grandparent Visitation

March 19, 2014 § Leave a comment

Grandparent visitation is a legislative creation that first made its appearance in Mississippi in 1983, and it is now codified at MCA 93-16-1. The concept was unknown to the common law.

We posted here before that there is no right of sibling or step-parent visitation.

But what about great-grandparents? They are, after all, grandparents themselves.

That was the question squarely before the COA in the case of Lott v. Alexander, handed down March 11, 2014.

The Alexanders are the great-grandparents of the children with whom visitation was sought. Lott, the children’s mother, is the Alexanders’ granddaughter. It appears from the record that, for whatever reason, the Alexanders have stood in the shoes of their own daugher, who is or was the grandmother of the children with whom visitation was requested. Based on that relationship, and on the judge’s findings that they met the criteria for grandparent visitation, the chancellor found that they were entitled to grandparent visitation. Lott appealed.

Judge Fair, for the majority, wrote that the statute, which is plain and unambiguous, does not include or even define great-grandparent status. The courts have no authority to expand or add to the scope of an unambiguous statute, so great-grandparent visitation is not available in Mississippi.

Judge Fair’s analysis is detailed and comprehensive. I commend it to your reading.

The outcome in this case should be no surprise. The statute is in derogation of common law, and, therefore, must be strictly construed. There is no room for the courts to add great-grandparents, siblings, step-parents, or any other categories of relatives whatsoever. That’s up to the legislature.

What is the SOL for an Action to Cancel a Deed Procured by Fraud?

March 11, 2014 § 7 Comments

SOL is a vernacular phrase that means, essentially, that one has run out luck, or words to that effect. SOL is also an acronym for Statute of Limitations. Both mean the same thing.

Statutes of limitation (SOL) are, by definition, statutory creatures of the legislature. In our state, there is a general three-year SOL for most actions, including those based on fraud. And, there is a ten-year SOL to recover land.

So, which SOL applies to an action to cancel a deed procured by fraud?

That was the question before the MSSC in the case of Lott and Saulters v. Saulters, decided January 23, 2014, in which Ralph Saulters filed suit to cancel Brenda Lott’s deed from their mother, Frances, based on fraud, and Brenda and her mother sought a dismissal based on SOL. Here is how Justice Chandler addressed the issue for the majority:

¶7. Brenda and Frances argue that Ralph’s claim for cancellation of Brenda’s deed falls under the general, three-year statute of limitations because it alleges fraud. This requires us to address the question of whether an action to cancel a deed that was fraudulently conveyed falls under the three-year statute of limitations governing actions based on fraud, or if it falls under the ten-year statute of limitations governing actions to recover land. We hold that, where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.

¶8. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code Sections 15-1-7 and 15-1-9. In relevant part, Section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss. Code Ann. § 15-1-7 (Rev. 2012) (emphasis added). Similarly, Section 15-1-9 provides:

Miss. Code Ann. § 15-1-9 (Rev. 2012). A suit to remove a cloud on title is considered an action to recover land. O’Neal Steel, Inc. v. Millette, 797 So. 2d 869, 873 (Miss. 2001).

¶9. Unlike the legislatures of most states, our Legislature has not created a statute setting a shorter limitations period on actions to recover land obtained by fraud; in fact, Section 15-1-9 states that actions to recover land based on fraud will have a ten-year statute of limitations:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity. However, in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.

Miss. Code Ann. § 15-1-9 (Rev. 2012) (emphasis added).

¶10. We have twice applied the ten-year statute of limitations in cases where fraud was alleged in an action to recover possession of real estate. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748 (1905), overruled on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907); Aultman v. Kelly, 109 So. 2d 344, 349 (Miss. 1959). In Jones, we explained–in the context of an action to recover land–that to take advantage of the concealed-fraud provision of Section 15-1-9 quoted above, plaintiffs must allege “that complainants did not discover or know of this fraud over 10 years before instituting their suit.” Jones, 85 Miss. 802, 38 So. 742, 748 (1905) (emphasis added). Likewise, in Aultman, where heirs sought to cancel a mineral deed they alleged was procured from their father by fraud, we stated that the heirs “were required to institute a suit within ten years from the accrual of their right.” Aultman, 109 So. 2d 344, 349 (Miss. 1959).

¶11. We disagree with the Fifth Circuit’s interpretation of Mississippi law on this issue in Suthoff v. Yazoo County Industrial Development Corporation, 722 F. 2d 133 (5th Cir. 1983). [Footnote omitted] In it, the Fifth Circuit applied a three-year statute of limitations to an action where the plaintiffs alleged that they were fraudulently induced to sell land under the auspices that their property would be condemned. Suthoff, 722 F. 2d 134-35 (5th Cir. 1983). The court acknowledged that “the ten-year period for the recovery of land has been applied in two actions in Mississippi to set aside conveyances allegedly procured by fraud,” but noted that no Mississippi court had decided “the precise issue [of] whether such an action is governed by the statute relating to actions for fraud or the statute relating to actions to recover land.” Id. at 137.

¶12. In applying the shorter statute of limitations, the Fifth Circuit followed the rule used by the majority of states. We decline to follow this majority rule, because, as mentioned above, the Mississippi Legislature, unlike the majority of states, has not created a statute setting a shorter period of limitation on actions to recover land on the grounds of fraudulent conveyance. A case from Utah, cited in Suthoff as support for this majority rule, explains the majority rule and illustrates why it should not be the rule in Mississippi given our current statutory scheme:

The legislature of this state, as in nearly all other states, has seen fit to fix a shorter period of limitation upon actions for relief upon the ground of fraud or mistake than for recovery of possession of real estate. This is for the very cogent reason that a person claiming to have been defrauded or to have been induced to enter into a contract by mistake should not be permitted to allow a great length of time to elapse after discovery of the fraud or mistake before instituting his suit . . . .

Davidsen v. Salt Lake City, 95 Utah 347, 81 P.2d 374, 376-77 (1938) (emphasis added).

¶13. Because our Legislature has not created a law shortening the time to bring an action to recover a fraudulent conveyance, and because our current statutory law imposes a ten-year statute of limitations for actions to recover land based on fraud, we decline to adopt the majority rule. We hold that, where a plaintiff alleging a possessory interest is seeking to regain title to land lost by a fraudulent conveyance, or to clarify his own title clouded by fraudulent conveyance, the action still falls under the ten-year statutes applying to actions to recover land, despite the presence of allegations of fraud. [Fn 3]

[Fn 3] We note that an action to cancel a fraudulent conveyance can fall under the three-year statute of limitations where the plaintiff does not allege a possessory interest in the land. See O’Neal Steel, Inc. v. Millette, 797 So. 2d 869 (Miss. 2001), holding that the three-year statute applied where a plaintiff-creditor sought to cancel a deed the defendant-debtor conveyed to a third party in order to avoid a judgment lien. We further note that today’s decision overrules McWilliams v. McWilliams, 970 So. 2d 200 (Miss. Ct. App. 2007), in which the Court of Appeals erroneously applied the reasoning of Millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.

All of the language quoted above is important, but Footnote 3 is extremely important to understanding how the two SOL’s apply in different situations involving cancellation of a deed. I also found it interesting that a COA decision was overruled in a footnote. Just goes to show that if you don’t read every word, you might miss something crucial.

Some Changes Coming to a Chancery District Near You?

March 3, 2014 § Leave a comment

There is legislation wending its way through the halls of the Capital that might end up making some changes in your chancery court district.

HB 1026 has passed the House and is before the Senate. If it would pass in its current form here are some of the changes you could expect in chancery:

Third District (DeSoto, Grenada, Montgomery, Panola, Tate, Yalobusha). Adds one additional chancellor to bring the total to four. Two chancellors would be elected from DeSoto, and two would be elected from the remaining counties. Current chancellors are Lynchard, Lundy, and Cobb.
Fourth District (Amite, Franklin, Pike, Walthall). Adds one chancellor. Current lone chancellor is Halford. This district is now one of only four one-judge chancery districts in the state. If this change goes through, that would leave the following one-judge districts: Second (Newton, Scott and Jasper) Clark; Fifteenth (Copiah and Lincoln), Patten; Nineteenth (Jones and Wayne), McKenzie.
Ninth District (Washington, Sunflower, Humphreys, Sharkey, Issaquena, and Warren). Would surrender Humphries to a newly-created Twenty-First District, leaving Washington, Sunflower, Sharkey, Issaquena, and Warren . Current chancellors are Barnes, Weathersby and Wilson.
Eleventh District (Madison, Yazoo, Holmes, Leake). Would surrender Yazoo and Holmes to a newly-created Twenty-First District, leaving Madison and Leake in the eleventh. Current chancellors are Goree and Brewer.
Twentieth District (Rankin). Would add one chancellor. Current chancellors are Grant and Fairly.
Twenty-First District (Humphries, Holmes and Yazoo). Would create this district. Number of chancellors is not specified in the bill, as far as I can tell.
There are numerous changes to arrangement of precincts within subdistricts. If your district has subdistricts, you might want to check the bill to see whether any changes are being made.

There are also changes made in circuit court districts and judgeships.

Of course, this legislation still has to make it through the Senate, and then through conference, and then get the Governor’s signature before it becomes law, and it may see some substantial revisions in the process. If it does survive to become law, however, it will make some of the most visible changes in the chancery landscape that most of us have seen in many years.

Enforcing the Temporary Order

February 19, 2014 § Leave a comment

Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?

It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”

So … what are you going to do about it?

In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:

¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).

You have several ways to approach enforcement of temporary orders:

You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.

The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.

Getting All the Heirs Aboard

February 13, 2014 § 4 Comments

Since 2010, it has been the common practice across the state for chancellors to require an heirship determination in intestate estates (some chancellors require it in testate estates also).

That’s because MCA 91-1-29 specifically requires it, as does MCA 91-7-293.

Most attorneys accomplish the requirement by filing a petition to determine heirs, publishing process for unknown heirs.

So, you have opened the estate and had your administratrix qualified. You joined the three siblings, and you have started publishing notice in the local newspaper for unknown heirs. Have you and your fiduciary done all that the law requires?

Not necessarily.

In the case of Estate of Thomas v. Thomas, 883 So.2d 1173, 1177 (Miss. 2004), the MSSC said this:

¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996). Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King, 579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The administratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev.2004). In King, as here, the administratrix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs that the paternity claims would be barred if not timely filed.

MCA 91-1-15(3)(c) is a statute of limitations for claims of illegitimates against an estate, and in most circumstances that limitation does not begin to run until the illegitimate receives actual notice( be sure to read this statute).

So, let’s say that your client, the administratrix, actually knows that the decedent had an illegitimate child. If she conceals that fact from you, and it later comes to light, the administration of the estate, including any final judgment, closing, and disbursement, is subject to a finding of fraud on the court and consequent setting aside. And … there is no time limit on an action to set aside a judgment for fraud on the court.

Likewise, if you and your fiduciary do not do due diligence to discover any illegitimates, your administration of the estate is in jeopardy from later claims of illegitimates who say that they were not properly noticed.

How do you protect yourself and the heirs? Some suggestions:

Grill your client about who all the heirs might be, and ask whether there are any “outside children.” Ask if there has even been a suspicion that there might be illegitimates, and ascertain not only who they might be, but also who might be the father, the grandparents, aunts, uncles, or persons with knowledge. Investigate, make contact, ask questions.
Get your client to sign an affidavit you can file with the court spelling out what knowledge the fiduciary has as to any illegitimates, and the diligent search and inquiry that has been done to identify and contact them.
As a further measure of internal protection, you might want to compose a letter to your client recounting what he or she told you about illegitimates, and itemizing the efforts made to identify and contact them. Then have your client sign a file copy acknowledging receipt.
Sometimes it happens that a person believed to be an illegitimate heir disclaims the heirship or any interest in the estate. If possible, get that person to sign a disclaimer of heirship and any interest in the estate, and file it with the court. If he or she refuses, have personal process served.
If you unearth certain or purported illegitimate heirs, have them personally served with process and notice per MCA 91-1-15(3)(c) that his or claims will be barred unless filed within the statutory time.
Be sure to include the names of any known or purported illegitimate heirs in your petition for determination of heirship and publication notice. Ask the court to adjudicate them not to be heirs unless they file a timely action per MCA 91-1-15(3)(c).

In Loco Parentis Child is not a Wrongful Death Beneficiary

January 30, 2014 § Leave a comment

The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.

The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up:

¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:

A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.

Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).

¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:

. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]

. . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.

Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).

This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?

I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?

Child Support Guidelines and the Shared Custody Arrangement

January 27, 2014 § 4 Comments

Shared parenting arrangements are more and more common in chancery court. The forms they take can vary considerably. In some cases there is a true joint custody provision whereby the children spend significant periods with each parent. In other cases, the time allocated between the parents is in the form of one parent having custody, and the other parent having extended visitation.

A question that arises from those cases is what impact the division of time has on a child support order. MCA 43-19-101(2) says that the statutory child support guidelines apply unless the court makes a finding ” … that application of the guidelines would be unjust or inappropriate under the criteria specified …” in MCA 43-119-103. One of those deviation criteria is set out in MCA 43-19-103(g), which reads:

The particular shared parenting arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, giving due consideration to the custodial parent’s homemaking services.

I interpret this to mean that, in order to invoke this exception, it would require both a showing that there is a custody arrangement involving “a great deal of time” spent with the child by the paying (“noncustodial”) parent, either: (a) resulting in reduced financial expenditures by the other (“custodial”) parent; or (b) refusal of the paying parent to be involved in the child’s activities, inferentially resulting in increased expenses for the other parent. In either case, the court would be required to take into account the homemaking services of the non-paying parent.

A case illustrating application of Section 103(g) is Marin v. Stewart, decided by the COA on September 24, 2013. In that case, Marin argued on appeal that the chancellor had erred in not reducing his child support obligation due to a shared-custody arrangement. Judge Irving addressed the issue for the court:

¶10. Marin contends that section 43-19-103(g) is a criterion that the chancellor failed to consider. He argues that his voluntary extended-visitation arrangement with Stewart satisfies section 43-19-103(g) and would justify a downward deviation from the child-support guidelines. Marin did not raise this issue before the chancellor, and he is procedurally barred from asserting it for the first time on appeal. See Wilburn v. Wilburn, 991 So. 2d 1185, 1191 (¶14) (Miss. 2008).

¶11. Procedural bar notwithstanding, while section 43-19-101(2) requires that the chancellor make specific findings under the criteria in section 43-19-103 in order to deviate from the guidelines, it does not require that all criteria be considered in order for the findings to be sufficient. See Hensarling v. Hensarling, 824 So. 2d 583, 588 (¶¶13-15) (Miss. 2002) (affirming the chancellor’s reasoning that the guidelines were inappropriate when the chancellor’s findings only addressed two of the criteria under section 43-19-103); Smith v. Smith, 25 So. 3d 369, 374 (¶¶14-15) (Miss. Ct. App. 2009) (affirming the chancellor’s on-the-record findings when his findings only applied to two of the criteria listed under section 43-19-103).

¶12. Here, the chancellor stated on the record his reasons for deviating from the guidelines. Although his reasoning did not include an analysis of Marin’s visitation arrangement—which was not enough to warrant a deviation from the guidelines since there is no indication in the record that the visitation reduced Stewart’s financial expenditures—the chancellor’s findings on the record indicate that he deemed the guidelines inappropriate because fourteen percent of Marin’s adjusted gross income would have been less than what it costs to keep the child in daycare. The chancellor’s reasoning properly falls under section 43-19-103(i), as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate. This issue is without merit.

A few points:

Notice Judge Irving’s statement that “there is no indication in the record that the visitation reduced Stewart’s financial expenditures.” Again, if you want a downward reduction via subsection (g), you’d better muster up proof that your client’s actions reduced the other party’s expenditures.
It is important to realize that Section 103 does not mandate a reduction in child support because one of the factors is present. It only authorizes the court to deviate from the guidelines if one of them applies. The statute specifically states that the presumption of applicability of the Section 101 guidelines “may” be overcome; not “shall” be overcome.
Judge Irving also makes the obvious point that not all of the criteria spelled out in Section 103 need be considered by the court in order for findings to be sufficient.
Section 103(g) is both a sword and a shield. Note that its language would justify either a downward adjustment in one set of facts, or an upward adjustment in another set of facts.

Don’t assume that child support will be 14, or 20, or 22, or 24, or 26%. If you represent the paying party, study Section 103 to see whether there is a basis for a downward justification. If you represent the non-paying party, you just might find something in Section 103 that will justify an upward adjustment. That’s what happened in Marin v. Stewart, and it held up on appeal.

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