The Price of Admission
August 17, 2016 § 2 Comments
Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.
It can cut both ways, though.
In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.
The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.
Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:
¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.
However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
Id. (quoting M.R.C.P. 36(b)).
¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).
¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.
¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:
[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.
After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”
¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.
You can take away at some points:
- Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
- The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
- The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
- Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
- But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
- Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.
The Power of Prayer
August 16, 2016 § 1 Comment
In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:
” … he’d better pray longer and harder.”
Chickenfeed Brings the Chickens Home to Roost
August 15, 2016 § 8 Comments
Our legislature slashed the Department of Mental Health’s budget, and that agency, forced to do its job on mere chickenfeed, has slashed services. It’s a topic I’ve discussed before here and here.
Now the chickens have come home to roost, as the saying goes. The U.S. Justice Department has sued the state (that’s us) for violations of the Americans with Disabilities Act and some other federal laws. You can read about the suit here.
Business as usual in Mississippi: we have to be sued time and time again to make our state do the right thing, or the constitutional thing, or simply to abide by the law.
Some Random Thoughts and Tips on Probate Practice
August 12, 2016 § 1 Comment
Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?
Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.
Here are some thoughts about probate, along with a few tips:
- MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
- UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
- For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).
TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.
TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.
- If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
- There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
- Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
- Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.
The Burn of College Expense
August 11, 2016 § 2 Comments
Decades ago a chancellor in this part of the world was asked why he insisted that his sons pay their own way through college. He replied that he would only do it if a chancellor ordered him to do it. Of course, the twist was that he was never divorced, so no chancellor could ever get involved in that decision-making.
It’s pretty well ingrained in our law now that a chancellor may order parents to contribute to the college expenses of their children post-divorce.
The latest iteration of the principle appears in the recent COA decision in Harris v. Porter, decided July 26, 2016.
In that case, the chancellor ordered Tony Harris to contribute $1,250 a semester to the cost of his daughter, Myrtis, to attend Mississippi State University. The chancellor also increased the child support he pays to his ex-wife, Michelle Porter. Tony appealed, and the COA affirmed. Judge Ishee wrote for a unanimous court:
¶6. Next, Harris argues that the trial court erred in awarding college expenses. Harris points to his financial statements, which he believes shows that there is no disposable income, and argues that Porter did not show evidence to the contrary. Harris further argues that he cannot afford to pay college expenses without significantly affecting his customary lifestyle. Harris explains that he has two young children who live with him and his current wife, and another child attending Alcorn State University. Harris also argues that there was no evidence that Myrtis will thrive in college. Finally, Harris asserts that he wanted to have input as to which college he could afford for Myrtis.
¶7. The Mississippi Supreme Court has held that a child’s decision to attend college may be considered a material change in circumstances justifying child support modification. See Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991). Child-support payments under section 43-19-101 create an award for support that goes toward the child’s basic living expenses such as food, clothing, and shelter. See Nichols v. Tedder, 547 So. 2d 766, 769 (Miss. 1989). Additional expenses, including but not limited to health insurance, out-of-pocket health expenses, transportation, and college expenses, may be properly added to the basic support award. Id.
¶8. One or both parents may be ordered to pay part or all of a child’s college tuition and related expenses. Saliba v. Saliba, 753 So. 2d 1095, 1101 (¶21) (Miss. 2000) (citing Rankin v. Bobo, 410 So. 2d 1326, 1328 (Miss. 1982)). Nonetheless, as Harris asserted, “the parent must also have the ability to pay for the education without affecting his customary lifestyle.” Wallace v. Wallace, 965 So. 2d 737, 745 (¶27) (Miss. Ct. App. 2007) (citation omitted). However, in this case, Harris did not present any evidence of how Harris’s lifestyle would change. Nor can we find anything in the record that supports his claim. As found earlier, the chancery court clearly reviewed Harris’s financial documents and found that Harris was able to help with college expenses. Furthermore, Porter explained that she is seeking financial assistance and Myrtis is applying for scholarships to help with the cost of tuition.
¶9. Porter introduced various awards, plaques, and newspaper clippings regarding Myrtis’s achievements during her high-school career, which led the chancery court to find that Myrtis was an “outstanding young lady.” She clearly showed aptitude for and the potential to benefit from college according to her high-school record. Myrtis was involved in numerous extracurricular activities both at school and in the community. There is ample evidence that Myrtis excelled as a well-rounded student. Her admission to Mississippi State University is one more example of that. While Harris complains that he should have been consulted about which college he could afford for Myrtis to attend, the chancery court’s ruling does not set forth a specific college and it does not prevent Harris from being a part of the decision-making process. [Fn1] We find this argument without merit.
[Fn 1] However, according to the record, Myrtis has been accepted to Mississippi State University and it is her preferred school. Furthermore, we point out that Harris would be paying what amounts to less than fifteen percent of the total cost of tuition. See http://www.admissions.msstate.edu/freshmen/money-matters/#tuition (the 2015-2016 annual cost to attend the school, on average, is about $23,000, which includes room and board, tuition, and out-of-pocket expenses).
As the footnote points out, it’s hard to imagine where Myrtis could have gone off to college that would have cost Tony less than $1,250 a semester. There are plenty of parents around the state under college-support orders who would gladly trade places with him. Speaking personally, as one who put a child through Millsaps College in the 1990’s, I would have in a heartbeat.
Until the nation “feels the Bern” and embraces government-paid college tuition for all, parents will have to continue to experience the burn of college expenses.
This case is just a reminder that guideline child support can be a mere starting point when there are extraordinary expenses of a child that must be satisfied.
Groundless
August 9, 2016 § 6 Comments
Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.
After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.
In her case in chief, Lonnie presented testimony that Les:
- Was uncommunicative, controlling, and belittling.
- Was unwilling to spend time with her or to schedule family vacations.
- Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
- Refused to give her compliments or to acknowledge her contributions to their life.
- Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
- Refused to give her money to buy groceries because he might not like the food she bought.
- Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”
Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.
For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.
The chancellor ruled that Lonnie had failed to prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.
In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.
I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.
What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).
Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”
I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.
People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.
I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.
When Excusable Neglect Isn’t
August 8, 2016 § Leave a comment
We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.
In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.
Later, in early 2016, we noted here that the MSSC had granted cert.
Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:
¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.
The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”
The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.
The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.
One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:
¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.
The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.
“Quote Unquote”
August 5, 2016 § Leave a comment
“Proud, brave, honorable by its lights, courteous, personally generous, loyal, swift to act, often too swift, but signally effective, sometimes terrible, in its action — such was the South at its best. And such at its best it remains today, despite the great falling away in some of its virtues. Violence, intolerance, aversion and suspicion toward new ideas, an incapacity for analysis, an inclination to act from feeling rather than from thought, an exaggerated individualism and too narrow concept of social responsibility, attachment to fictions and false values, above all too great attachment to racial values and a tendency to justify cruelty and injustice in the name of those values, sentimentality and a lack of realism — these have been its characteristic vices in the past. And, despite changes for the better, they remain its characteristic vices today.” – W. J. Cash
“That sinuous southern life, that oblique and slow and complicated old beauty, that warm thick air and blood warm sea, that place of mists and languor and fragrant richness…” – Anne Rivers Siddons
“I’m very Southern in the way I walk in the world. I love to laugh. I love to eat. I love to hug people. But if somebody makes me mad, my neck may roll. I can be aggressive with a Southern twang.” – Katori Hall
ABA Blawg 100
August 3, 2016 § Leave a comment
The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).
If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.
[I am republishing this once each week until August 7]
The Better Chancery Practice Blog 