Reprise: Less-than-Diligent Inquiry
February 24, 2017 § 1 Comment
Reprise replays posts from the past that you may find useful today.
DEVIOUS SEARCH AND INQUIRY
July 26, 2012 § 2 Comments
It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.
In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.
It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.
The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.
The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:
Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.
“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.
Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.
The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.
Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.
In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …
A few Comments about Comments
February 22, 2017 § 2 Comments
From time to time I have to reiterate a few points about comments …
- I welcome comments by lawyers and judges. I enjoy the input, even when it disagrees with or corrects what I post. I’m not infallible, and my point of view is not the only way to see things, so have at it. Add your own insight.
- Laypersons are free to read this blog, but I limit comments to lawyers and judges. That’s my policy, and I’m sticking to it. Many comments I get from laypeople ask for legal advice, or what to do because their lawyer is not doing a good job, or the judge is against them, or what if this and that. There are lots of blogs and listservs that perform that function. This is not one of them. Mississippi law prohibits me from giving legal advice.
- As always, all comments are moderated. If yours includes criticism of a sitting judge in a case, don’t expect it to be published.
- When I use the term “lawyer” here, I mean lawyers and their staffs.
Bills that Could Affect Your Chancery Practice
February 2, 2017 § Leave a comment
As I understand it, these are the pending bills that have made it out of committee. I tried to copy so as to preserve the hyperlinks to the bills, but was unsuccessful. You can find the text of the bills at this link. Also, some of the matters listed below apply to Youth Court, but I included them nonetheless because they may create some overlap with chancery, particularly in custody cases.
HB 476 Child abuse; require DHS to notify applicable military installation family advocacy program in certain cases.
01/25 (H) Title Suff Do Pass Comm Sub
Dixon
HB 481 Medical expenses; define admissibility during trial.
01/26 (H) Title Suff Do Pass
Gipson
HB 483 Multidisciplinary teams and child advocacy centers; provide information prepared by shall be confidential under certain circumstances.
01/31 (H) Title Suff Do Pass
Gipson
HB 489 % Mental health courts; authorize and provide for certification of.
01/26 (H) Title Suff Do Pass Comm Sub
Currie
HB 551 Pro se legal forms; provide that court-approved forms may be provided by public librarians and law librarians.
01/25 (H) Title Suff Do Pass Comm Sub
Reynolds
HB 605 Dept. of Child Protection Services; transfer of DHS functions to shall be completed by Jan. 1, 2018.
01/24 (H) Title Suff Do Pass
Dixon
HB 805 Supreme Court; authorize to have original jurisdiction for claims seeking injunctive relief against the state.
01/24 (H) Title Suff Do Pass
Baker
HB 806 Nonprobate Transfers Law of Mississippi; create.
01/31 (H) Title Suff Do Pass
Baker
HB 807 Jointly held property; authorize to be sold by broker in a commercially reasonable manner.
01/31 (H) Title Suff Do Pass
Reynolds
HB 843 Landlord-tenant law; revise certain provisions related to the nonpayment of rent.
01/24 (H) Title Suff Do Pass Comm Sub
Johnson (87th)
HB 849 Fiduciary Access to Digital Assets and Digital Accounts Act; create.
01/24 (H) Title Suff Do Pass
Lamar
HB 853 Power of Attorney; revise to authorize parents to delegate for care and custody of a child.
01/31 (H) Title Suff Do Pass Comm Sub
Eubanks
HB1013 Department of Child Protection Services; make technical amendments to provisions of law relating to and give certain powers and duties to.
01/26 (H) Title Suff Do Pass Comm Sub
Dixon
HB1210 Youth Court; require to provide redacted copy of child’s record to child’s parent/guardian upon request of the parent/guardian.
01/30 (H) Title Suff Do Pass
Bennett
HB1211 Youth court prosecutor; require district attorney to appoint and require residency in county where youth court is located.
01/30 (H) Title Suff Do Pass
Bennett
HB1212 % Child Protection Services; authorize to have background check of home residents during emergency placement situation.
01/31 (H) Title Suff Do Pass Comm Sub
Gipson
HB1213 Youth court; authorize to utilize volunteer Court-Appointed Special Advocate (CASA) in abuse and neglect cases.
01/31 (H) Title Suff Do Pass
Bell (65th)
HB1366 Domestic abuse protection orders; revise appellate procedure.
01/31 (H) Title Suff Do Pass
Bain
HB1406 Marketable Record Title Act; enact.
01/31 (H) Title Suff Do Pass Comm Sub
Touchstone
SB2063 Appropriation FY2018; pilot programs for legal representation for indigent parents in child abuse cases.
01/05 (S) Referred To Appropriations
Dearing
SB2161 % Constables; revise fees charged by.
01/30 (S) Title Suff Do Pass Comm Sub
Burton
SB2302 % “Ban the box;” facilitate post-incarceration employment opportunities for nonviolent felons.
01/31 (S) Title Suff Do Pass Comm Sub
Barnett
SB2327 Conversion and Domestication; revise.
01/24 (S) Title Suff Do Pass
Tindell
SB2342 Termination of parental rights; technical corrections.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell
SB2350 Business Corporation Act; technical revisions.
01/24 (S) Title Suff Do Pass
Tindell
SB2369 Youth court prosecutor; must be resident of the county and appointed by the DA.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell
SB2388 Domestic abuse protection orders; revise appellate procedure.
01/24 (S) Title Suff Do Pass Comm Sub
Wiggins
SB2427 Code of Judicial Conduct; immunity for members of a special campaign committee.
01/27 (S) Title Suff Do Pass
Hopson
SB2483 Divorce; bona fide separation as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell
SB2520 Youth court records; parents have right to redacted copies.
01/24 (S) Title Suff Do Pass
Hill
SB2628 Court reporter; may be hired to record court proceeding.
01/31 (S) Title Suff Do Pass
Branning *
SB2644 Mental illness; revise acquittal and commitment for.
01/26 (S) Title Suff Do Pass Comm Sub
Hopson
SB2673 Guardian ad litem fees; failure to pay enforced as any other civil debt.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell
SB2680 Abused and neglected children; clarify alternative of relative care.
01/31 (S) Title Suff Do Pass Comm Sub
Hill
SB2703 Divorce; domestic violence as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Doty
SB2821 Youth court referees; appointed to a 4-year term.
01/31 (S) Title Suff Do Pass Comm Sub
Tindell
SB2842 % Mental health court intervention programs; authorize.
01/31 (S) Title Suff Do Pass Comm Sub
Branning
Reprise: The Artful Withdrawal
January 31, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today.
ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION
November 21, 2011 § Leave a comment
We’ve talked here before about the proper procedure to withdraw from representing a client.
It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.
The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.
On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.
On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.
Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.
The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”
The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:
” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”
In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.
The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.
Child Support and Private School Tuition
January 12, 2017 § 2 Comments
John (Jack) and Lori Bell were divorced in 2010. Their irreconcilable differences divorce judgment incorporated a PSA that included the following language:
As child support, Husband … shall pay $1,700 per month … which he shall pay … until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. The child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereafter.
The $1,700 agreed monthly child support exceeded the statutory child support guidelines.
The student loan is referenced in a subsequent paragraph, which explains that its proceeds were used in part to finance the household while the wife completed her degree at an Oklahoma law school.
In 2014, Jack filed for modification of child support based on the fact that he was laid off from his employment as a mechanical engineer and had to take a job in his mother’s country store, which later went out of business. His monthly income dropped from $3,077 at the time of the divorce to zero after the store closed. Jack had unilaterally reduced his child support to $625 a month based on his unemployment; he paid much of his arrearage after his mother’s store was sold. At the time the matter came on for hearing, Jack reported income of $2,575.35 a month.
Following a hearing, the special chancellor found Jack in contempt and ordered him to make certain remedial payments. The judge also found that there had been a material change in circumstances and reduced Jack’s child-support obligation to $865 per month, which was comprised of $365 in child support based on AGI, and an additional $500 in private school tuition. The chancellor explained that the private-school tuition was a deviation from the statutory guidelines, but was warranted based on his agreement to pay it in the PSA. Also, based on the modification, the judge ordered Jack to pay Lori a part of the balance due on the student loans.
Jack appealed, pointing out that the judge’s ruling resulted in his payment of child support greatly in excess of the guidelines. In the case of Bell v. Bell, handed down December 6, 2016, the COA affirmed on the point. Judge Barnes wrote for the majority:
¶9. Jack complains that the $500 per month in private-school tuition made his child-support obligation greater than 33.5% of his adjusted gross income, and with all support-related costs for Kinsley, his obligation was over 51% of his adjusted gross income. Moreover, he claims the finding by the chancellor at the modification hearing regarding the statutory deviation was insufficient. We disagree.
¶10. The chancellor found a material change in circumstance and granted Jack’s request for a downward modification in child support and other financial obligations. Jack’s payment decreased from $1,700 per month to $1,000 per month – both figures including consideration for student-loan debt as well as child support. [Fn omitted] The child-support figure of $865 constituted $365 in statutory child support (14% of his adjusted gross income of $2,575.35) [Fn omitted] and $500 for private-school tuition at Pillow Academy – the cost of tuition for one month.
¶11. There was no specific explanation in the agreement itself regarding what comprised the $1,700, but the parties explained their original and current intentions at the modification hearing. The original custody, support, and property-settlement agreement, signed by both parties, stated:
As child support, Husband . . . shall pay $1,700 per month, as child support, following the entry of divorce which he shall pay . . . thereafter until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. This child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereinafter.
Another provision in the agreement that related to how the parties arrived at the child-support figure was related to the student-loan debts:
Wife shall pay the following debts: all debts in her name alone including the $130,000 student loan. It is agreed that this student loan was used by both Husband and Wife for their college educations, and that Wife is agreeing to be responsible for paying all of it in consideration of Husband paying her the child support set out in paragraph 3 above.
At the modification hearing during examination by Lori’s counsel, Jack responded affirmatively that the two of them agreed to all of the terms and provisions of the agreement, waited sixty days, and were granted a divorce, and that Jack agreed to pay $1,700 per month in child support under the agreement. Jack further stated during questioning that they came up with the $1,700 figure “because of her student loans and everything else.” He admitted Pillow Academy tuition was also factored into the figure, which was approximately $450 to $500 per month at the time. Jack stated Kinsley had gone to Pillow Academy since “day one,” or six years at that time, and he wanted her to continue attending the school. Regarding the student loans, Jack admitted the $130,000 was “more than just a student loan”; it included some of their joint living expenses while Lori received her law degree from the University of Tulsa. Jack affirmed that he told the chancellor during the divorce
proceedings that he could comply with all of the obligations of the agreement, including the $1,700 in child support.
¶12. As Lori points out, chancellors are not required to make specific findings of fact supporting upward deviations in child support when the parties have previously, knowingly, and willfully obligated themselves to pay more than the guidelines require, such as through
a valid agreement. See Stigler v. Stigler, 48 So. 3d 547, 555 (¶29) (Miss. Ct. App. 2010). In divorce agreements, “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.” Id. at 551 (¶9) (quoting Rogers v. Rogers, 919 So. 2d 184, 189 (¶19) (Miss. Ct. App. 2005)). Unlike Stigler, however, here the modification was not upward, and as Jack states, the parties did not agree to the terms of the modification. Stigler did not involve a child-support modification, but the initial agreement. Lori also cites to Short, 131 So. 3d at 1152 (¶10), where the supreme court denied downwardly modifying the husband’s child support obligation and enforced the original agreement because, while the obligation was “indeed high, [the husband] freely consented” to provide more support than the statutory guidelines recommended.
¶13. Jack cites to Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶9) (Miss. 2002), Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004), and Kilgore v. Fuller, 741 So. 2d 351, 354 (¶11) (Miss. Ct. App. 1999), for the proposition that private-school tuition is an ordinary expense to be included in the statutory amount of child support, and not to be calculated separately or in addition to the support award. Further, if an award exceeds the presumptive amount of the guidelines, the chancellor must make a specific finding as to why it is just or appropriate. However, neither Southerland nor Moses involved a modification award, and Kilgore was an increase in child support, not a decrease.
¶14. While all of the authority cited by the parties is somewhat distinguishable, we find the chancellor made a sufficient finding at the modification hearing that Jack must continue to pay private-school tuition. The finding was based upon Jack and Lori’s detailed testimony that Jack wanted Kinsley to continue her education at Pillow Academy, where she had been for six years. We do not agree with Jack that the sole basis of the chancellor’s ruling was the prior agreement. The chancellor took into account what the parties had agreed to before, as well as the way they had raised and educated the child since the divorce. The chancellor was able both to downwardly-modify Jack’s child support nearly by half, and
provide for private-school tuition within the obligation. We find no error with the modification.
¶15. The chancellor provided a sufficient explanation to deviate from the statutory guidelines of child support and include private-school tuition. This issue is without merit.
As with all child support cases, this one has a thicket of facts that significantly impacts the final outcome. The payment of private school tuition was linked to the student loans, which in turn affected the other amounts agreed to be paid, as well as the initial agreement to exceed the guidelines.
There is no discussion of the parties’ agreement in the PSA that the child support would not be modifiable so long as Lori paid the student loans. I don’t think such an agreement is binding on the court in a subsequent modification action. In East v. East, 493 So.2d 927 (Miss. 1986), the MSSC laid down the principle that the parties may not agree that periodic alimony may not later be modified*, and I see no reason why the same should not be even more applicable in child-support cases where the best interest of the child trumps every other consideration. The case of Tedford v. Dempsey, 437 So.2d 410, 418 (Miss. 1983) lends some weight to the argument. There may be a case directly on point. If you have a cite you can share it in a comment.
* This holding may have been impacted, more or less, by cases upholding so-called “hybrid” forms of alimony.
What you can take away is that child-support modification is not only fact-intensive, but its outcome is also largely shaped by the agreement or judgment that is sought to be modified.
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