The Better Chancery Practice Blog

MCA 93-5-1 (Sixth) provides for a divorce on the ground of “Habitual and excessive use of opium, morphine or other like drug.” The burden of proof is clear and convincing evidence.

Brian Booker charged his wife, Amy, with habitual and excessive user of drugs in his divorce complaint. In 2011, following gastric-bypass, gallbladder, and multiple kidney-stone surgeries, along with esophageal stretching, Amy was prescribed Lortab for pain. Brian charged that her use was excessive.

The evidence showed that there were episodes where Amy became impaired while taking the medication. She ran up credit card debt. Her mother testified that she was addicted to the drug. Family members testified that they locked the meds in a closet; when Amy found the key she suffered either an overdose or seizure and checked into a rehab facility where she stayed only one night. She got a DUI, suffered a seizure during the stop and had to be taken to a hospital, and had no recollection of the event.

Amy denied being abusing or impaired by the drug, and some of her family members backed up her testimony. There was no medical or pharmaceutical testimony, and nothing in the record established that she had been diagnosed with addiction. There was no evidence that Amy was over-prescribed medications.

The chancellor found that Brian had failed to meet his burden of proof, and that Amy had proven that her use of the drug was based on valid prescriptions. He dismissed Brian’s complaint, and Brian appealed.

In Booker v. Booker, decided March 8, 2016, the COA affirmed. Judge Griffis laid out what is required to make a case on the Sixth Ground for divorce:

¶6. To prove the ground of habitual and excessive use of opium, morphine, or other like drugs, the supreme court has held:

A complainant must prove (1) that the guilty spouse’s use of drugs was habitual in that it was customarily and frequently indulged; (2) that the guilty spouse’s drug use was so excessive that [s]he did not have the ability to control h[er] appetite for drugs; and, (3) that the drugs used were morphine or opium or comparable . . . in effect.

Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983); see also Miss. Code Ann. § 93-5-1.

¶7. In Ladner, the court ruled that the “habitual” use of drugs “requires more than an occasional indulgence in drugs.” Ladner, 436 So. 2d at 1373. Rather, “the complainant [must] show that the defendant customarily and frequently uses drugs.” Id. The use of drugs must not only be “habitual” but also “excessive.” Id. at 1374. This element “requires an abuse of drugs.” Id. The supreme court has ruled:

[T]he guilty spouse must be so addicted to the use of drugs that [s]he cannot control h[er] appetite for drugs whenever the opportunity to obtain drugs is present. However, we consider it a justifiable excuse for such behavior where . . . the defendant is prescribed such drugs by a physician for legitimate reasons.

Id.

¶8. The Ladner court explained the “excessive” element through analysis of Rindlaub v. Rindlaub, 125 N.W. 479 (N.D. 1910). There, a wife sought a divorce from her husband on the ground of his drug use. Though the husband’s use was habitual, the court denied the divorce and found that because the drugs were taken to alleviate pain caused by health problems, “such a habit [was] reasonably and necessarily caused by conditions over which the victim had no control . . . .” Ladner, 436 So. 2d at 1374 (citing Rindlaub, 125 N.W. at 496).

¶9. Prescription-drug use was the issue in Ladner. “The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosages.” Id. at 1369. Ladner’s pharmacist also testified about the prescriptions that he filled. Id. at 1373.

¶10. In Lawson v. Lawson, 821 So. 2d 142, 145 (¶14) (Miss. Ct. App. 2002), this Court affirmed a divorce on the ground of habitual and excessive use of drugs. The Court ruled that the chancellor’s decision was based on evidence that the wife obtained drugs through “over-prescription by medical personnel” and by “simultaneously seeking treatment from multiple physicians, without sharing the fact that she was seeing and obtaining prescriptions from all of them.” Id. at (¶13). Professor Deborah Bell in her treatise, cites Lawson for the proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must include in the definition the “misuse” of prescription drugs.

¶11. Here, within this definition, Brian must prove that Amy’s use of Lortab and similar pain medications was “excessive.” The chancellor found that it was not. And the chancellor ruled that “[Brian’s] proof showed without question that in every instance of her use of Lortab, the medication had been prescribed by a doctor for her very legitimate health problems.”

The court went on to examine the trial judge’s rationale, and affirmed the conclusion that Brian had failed to meet his burden of proof.

This case is a reminder of several points: (1) if you do not meet your burden of proof, your client will be denied a divorce; (2) the burden of proof for every ground for divorce except HCIT is clear and convincing evidence; (3) this Sixth ground has three important elements, each of which must be proven by clear and convincing evidence, and if you fail on one, you fail on all.

Up for comment at this link are some new rules proposed to redefine the practice of law in Mississippi vis a vis unauthorized practice and “interloping” by lawyers from other states. Your comments are welcome through March 28, 2016.

One salutary goal is to clarify who may come into Mississippi from other states to handle legal matters here, including litigation, arbitrations, mediations, etc., and the myriad other transactions that have lawyers flitting from state to state, and dipping into our jurisdiction.

An important provision, as I see it, is Section 2(f), which reiterates longstanding Mississippi law that preparation of agreements, contracts, pleadings, deeds, and the like does constitute the practice of law. The obvious reason is that selection of the proper documents, their terms, and when and how to use them require legal judgment and analysis beyond the skill level conferred by Google searches.

We all have seen far too many dreadful computer-generated pleadings and documents that people purchase online from papermills. Likewise, it seems that every county has one or several backwoods, shadowy characters who, for a “modest” fee, will prepare the paperwork parties need to file ID divorces and simple matters. In most cases, the likelihood of damage is small, but there are no ethical bounds on those document-preparers, and there is always the possibility that some legal issue with later, larger ramifications, will go overlooked.

Whether these changes will do the job remains to be seen. It seems to be an elusive problem.

The MSSC is seeking comments on a proposal to amend MRCP 81 to clarify it, and moving its process provisions to R4.

You can access the proposed changes at this link.

These changes were recommended by the Conference of Chancery Judges in 2013, and then analyzed and studied by the MSSC’s Civil Rules Advisory Committee, which passed them on to the MSSC, which has been considering them since.

If you have any comments, pro or con, it will help the process if you will follow the instructions at the link. Deadline is April 1, 2016.

After the  legislature made it legal a couple of years ago to carry firearms in courthouses, except for courtrooms, some judges reacted by extending the protection of the courtroom out into external areas.

Now the legislature is responding with an amendment to HB 571, which has passed the House and is on the way to the Senate. It limits the definition of courtroom to ” … the actual room in which a judicial proceeding occurs, including any jury room, witness room, judge’s chamber, office housing the judge’s staff, or similar room” The law specifically allows firearms in ” … hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

If you agree this is good policy, then you may do nothing and see whether the Senate concurs.

If, however, you wonder what effect this will have on the safety of litigants involved in heated domestic matters who have to wait their turn in the hallways and corridors of our outdated and crowded courthouses, then you might consider contacting your Senator(s).

“This and no other is the root from which a tyrant springs; when he first appears he is a protector.”  —  Plato

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”  —  James Madison

“Tyranny is always better organized than freedom.”  —  Charles Péguy

Back in April, 2015, the MSSC amended the MRCP to add a new R5.1 imposing privacy protections for court filings in both paper- and electronic-filing districts. Consternation among bar, bench, and clerkdom ensued, and the high court suspended R5.1 pending further study. A committee was appointed to study the issue, and a new R5.1 was proposed, with application limited to electronic filings. On February 11, 2016, the new R5.1 went into effect. Here it is in its entirety:

Rule 5.1. Privacy Protection for Filings Made with the Court

Beginning July 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-5-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts — specifically, Sections 5 and 9 therein.

Even if MEC has not reached your particular district yet, if you file in an MEC county you will be bound by its rules. You can find them at this link.

Here are some highlights:

• You must not include in documents filed with the court, and must redact, any personal data identifiers.
• If Social Security numbers appear, only the last four digits may be shown.
• Only the initials of minor children, and not their full names, may be used.
• When stating a date of birth, only the year may be used.
• Only the last four digits of financial account numbers may be stated.
• No street addresses or apartment numbers may be stated; only city and state are listed.
• “The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The clerk will not review pleadings for compliance with these provisions.”
• Failure to comply can subject one to R11 sanctions.

It’s not just in the pleadings you draft that you will find sensitive information; it’s also in the documents you attach as exhibits to your pleadings, and in discovery filings. Almost every day, I have to admonish an attorney to redact Social Security numbers, birth dates, and financial account information. In fact, I directed the chancery clerk to keep a china marker — one of the best redaction tools I have found — in her desk for lawyers to use.

In my court, I extend the privacy protection practice to exhibits in evidence. I make the lawyers redact personal information from documents in evidence. Tax returns, financial documents, 8.05’s, pay stubs, credit card statements, and many other documents are chock-full of sensitive information that can be used for identity theft and other nefarious purposes.

You have a duty to your clients to protect them from being harmed by the information you put into the record. Now MRCP 5.1 makes that duty official.

Back in 2013, I posted about the MSSC’s decision in Memorial Hospital v. Proulx, which held that medical providers do not have a lien against the proceeds of a minor’s settlement. I think I aptly described that case as a “curveball for minor’s settlements.” You can revisit that post at this link.

Then last week, when I reprised “An Outline for Minor’s Settlements,” Randy Wallace picked it up, linked it, and did a nice piece on ERISA and subrogation that you should read and have in your minor’s settlement arsenal. You can access it at this link. His piece, which is well-researched and supported by authority, adds another dimension to the law of minor’s settlements, which on the surface appear simple, but can prove to be deceptively complex.

Last week I posted about the COA’s decision in Hughes v. Hughes, affirming the chancellor’s conclusion that the petitioner at trial had failed to prove cohabitation, mutual financial support, or de facto marriage so as to terminate his ex-wife’s periodic alimony.

Here are a few thoughts:

• Before you pocket the fee and set off on a quest to terminate or reduce alimony, be sure you are up to date on the law. Many of the old, moralistic rules that we older lawyers recall are long gone. Hughes includes a nice recap of the evolution of our present rules.
• Hughes illustrates just how difficult it can be to terminate alimony. Make sure you have proof that invokes every factor. These cases are extremely fact-intensive; they warrant careful and extensive discovery. You will lose if you file your pleadings, set the case for trial, and expect to win simply because the ex told someone that she and her new boyfriend have a romantic relationship.
• In Hughes, these facts were not enough to tote the load: Muriel and Darrell had a monogamous romantic relationship for more than four years; Darrell stayed overnight at Muriel’s home around once a week, and she occasionally spent the night at his; the two travelled together, and Muriel is a member of Darrell’s barbecue competition team; they travel together to Corvette car shows; they attend family events together; when travelling they stay in the same hotel room or in the barbecue trailer; Darrell gave Muriel valuable jewelry; Darrell stored a Corvette in Muriel’s garage; Darrell displayed one of his Corvettes in Kentucky with a plaque that read, “On loan from Darrell Hill & Muriel Hughes.”
• You just have to love the facts recited from Burrus at ¶24: Jolee spent more than $7,500 on her boyfriend’s criminal defense and paid for “his motel rooms while he was attempting to evade arrest; and she got a tattoo that said, “James’ girl.” You can’t make that kind of stuff up.