Reminder About the Chancery Judges’ Benchbook
June 26, 2019 § 1 Comment
Last month I posted that the Mississippi Judicial College is unlocking the Benchbook for Mississippi Chancery Judges so that it will be accessible to all.
So I am reminding you that you will be able to access this great resource beginning July 1 at this link.
Bell Seminars
May 24, 2019 § 1 Comment
As I have often said here, one of the best ways to stay current in family law is to attend Professor Debbie Bell’s seminars.
The schedule this year is
- Jackson. Friday, July 12, 2019. Jackson Marriott.
- Oxford. Friday, July 19, 2019. Oxford Conference Center.
- Gulf Coast. Friday, July 26, 2019. Imperial Palace Biloxi.
Registration is $235 in advance, $260 at the door on a space-available basis.
You can register online at msfamilylaw.com.
Prerequisites to Grandparent Visitation
May 20, 2019 § Leave a comment
After the chancellor dismissed her petition for grandparent visitation, Angela Vermillion appealed, arguing that the chancellor had applied a wrong legal standard. In Vermillion v. Vermillion, handed down March 19, 2019, the COA affirmed. Judge Carlton’s opinion is informative on the question of what a grandparent must prove in order to be entitled to visitation:
¶20. Angela next argues that the chancellor applied the wrong legal standard with respect to grandparent visitation; specifically, by refusing to consider section 93-16-5, which addresses the best interest of the child. Angela asserts that she began her relationship and bonding with her grandchild before Chella Rose’s birth and that the chancellor erred by failing to consider “Angela’s effort prior to the live birth.” Angela maintains that “[t]he proof has shown that through the second and third trimester of pregnancy, everyone was happy.” Angela asserts that the chancellor is required to consider section 93-16-5 prior to sustaining a motion for a directed verdict and dismissing Angela’s claim with prejudice.
¶21. Our careful review of relevant precedent shows that grandparents seeking visitation rights must first satisfy the requirements of section 93-16-3 before the chancellor is required to address the best interests of the child. In Aydelott [v. Quartaro], 124 So. 3d [97] at 100 (¶10) [(Miss. Ct. App. 2013)] (internal quotation marks omitted), this Court outlined the factors that the grandparents in that case had to prove in order “to have the statutory right to petition for visitation . . . .” This Court explained that the grandparents “first had to show they had established a viable relationship with each granddaughter.” Id. The grandparents “next had to show that ‘the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child.’” Id. at 101 (¶10) (quoting Miss. Code Ann. § 93-16-3(2)(a)). This Court then expressed that “[o]nly by the [grandparents’] establishment of a viable relationship and unreasonable denial of visitation could [they] reach the polestar consideration for statutory grandparent visitation—whether visitation rights of the grandparent with the child would be in the best interests of the child.” Id. at (¶11) (internal quotation marks omitted) (citing Miss. Code Ann. § 93-16-3(2)(b)). This Court explained that “[g]randparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation.” Id. at 103 (¶19).
¶22. Similarly, in Hillman v. Vance, 910 So. 2d 43, 47 (¶11) (Miss. Ct. App. 2005), this Court held that because the chancellor found that the grandparent seeking visitation failed to meet one of the requirements of section 93-16-3(2), the chancellor could have disposed of the visitation request without conducting a best-interest analysis under Martin [v. Coop, 693 So.2d 912 (Miss. 1997)]. See also Smith [v. Martin], 222 So. 3d [255] at 258 (¶2) [(Miss.2017)] (affirming the chancellor’s judgment granting visitation rights to the grandparents when the chancellor considered the Martin factors only “[a]fter determining that the [grandparents] were entitled to visitation under both section 93-16-3(1) and section 93-16-3(2) . . .”).
¶23. Since the record reflects that Angela failed to meet her burden of proving that she had established a viable relationship with Chella Rose, we find that the chancellor was not required to consider section 93-16-5 before granting the motion for directed verdict. This issue lacks merit.
There are, as we know, two types of grandparent visitation. The first, which Professor Bell refers to as “Type 1” is available to grandparents whose child has lost visitation rights and the court finds that visitation is in the child’s best interest.
The court was dealing here with what Bell calls “Type 2” grandparent visitation, which applies to all grandparents who can establish (1) that they have enjoyed a viable relationship with the child(ren) and (2) that the parents are unreasonably denying visitation. Only after those prerequisites are established does the court then analyze the child’s best interest.
Best interest and whether visitation is in the child’s best interest are, under either type visitation, analyzed via the Martin v. Coop factors.
Reprise: Child Support that Isn’t
May 17, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today.
CHILD SUPPORT AS A MIRAGE
August 21, 2012 § Leave a comment
Any agreement that provides for child support must be found by the judge to be adequate and sufficient, and it must be definite and specific enough to be enforceable.
Most agreements meet those requirements. You won’t go far astray if the child support is within the statutory guidelines and the language awarding it is clear and unambiguous as to how it was calculated, the exact amount to be paid, the due dates, and its duration (e.g., “until further order of a court of competent jurisdiction,” or “until the minor child is emancipated by operation of law or order of this court,” etc.).
These requirements don’t stop lawyers from presenting some pretty fanciful child support arrangements that sometimes make chancellors scratch their heads. Here are some that have been proven not to be allowable under Mississippi law, that you should avoid:
- An unspecified amount. In Lowrey v. Lowrey, 919 So.2d 1111, 1112 (Miss.App. 2005), the court rejected a provision that the mother would pay child support in the form of buying clothes for her children “in an amount that she can afford.” The provision is so indefinite as to be unenforceable. It also violates the fundamental principle that a person can not be held in contempt for failure to comply with a court order that is too vague or ambiguous to be understood. The court in Lowrey said at ¶33, “As it stands, a finding of adequacy and sufficiency depends upon enforceability of the child support provisions contained in a property settlement agreement.”
- Percentage child support. A provision that “husband shall pay 14% of his adjusted gross income as child support” is unacceptable. In Hunt v. Asanov, 975 So.2d 899, 902 (Miss.App. 2008), the court stated, “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself … leaving open no matter or description or designation out of which contention may arise as to meaning’” [Citations omitted]. In order to determine what the father’s obligation might be or might have been, the court must look beyond the four corners of the judgment to extraneous earnings data and other information that in all likelhood is in controversy. The argument may be made that the case of Rogers v. Rogers, 919 So.2d 184, 188-89 (Miss.App. 2005) is contra. In that case, the COA held as unambiguous a provision that the husband would pay “14% of his adjusted gross income or $600 a month.” The argument raised by appellant there was that the apparent dichotomy betweeen 14% and $600 created an unresolvable ambiguity. The court rejected that argument and found the language clear, as did the chancellor. Rogers, however, did not directly address the problem of enforceability created by the need of the trial court to consider extraneous evidence to make a complete judgment, and the court pointed out that the $600 amount specified was clear enough to give the appellant an idea of his obligation. I do not see Rogers as an endorsement of percentage child support.
- Amount tied to unspecified return. In Rudder v. Rudder, 675, 678 (Miss. 1985), the court found a provision that the husband would pay any income or divident received from “any investments in the name of the child” was too “indefinite in amount, type, whereabouts, and the name of the holder.” The court held that the award was worthless, as a practical matter, to the custodial parent for enforcement. This type of support order is a subspecie of percentage child support. It requires the court to look to material extraneous from the four corners of the judgment in order to enforce it.
- Lump sum. In Pittman v. Pittman, 909 So.2d 148, 153 (Miss.App. 2005), the court reversed a chancellor’s award of $26,000 in residential equity as additional child support that he said was more ” … in the nature of child support than accumulated assets.” The COA held that the chancellor has no authority to make an award of lump sum child support. If the chancellor lacks such authority, then I am certain that a chancellor lacks authority to approve such an agreement between the parties. Note: Professor Bell says that the statute authorizing guardians to settle claims on behalf of wards has been held to allow lump sum settlements in paternity actions. Bell on Mississippi Family Law, 2d Ed., §11.06[2][b], p. 321.
The kinds of alternative child support provisions that lawyers come up with is only limited by the imagination. It is the court’s duty, however, to make sure that the provisions are adequate and sufficient for the support and maintenance of the child. The further you stray from statutory guideline child support the more likely it is that you will be sent back to the drawing board.
When you draft an agreement you want it to produce tangible benefits for your client. The last thing you should want is for a court to find that language you threw together heedlessly is no more than an illusory mirage or an insubstantial chimera.
Fool’s Gold
April 1, 2019 § 3 Comments
Pondering the imponderable on April Fool’s Day …
“The foolish have us far more in their power than the wise.” — Jean Ingelow
“Those who wish to appear wise among fools, among the wise seem foolish.” — Quintilian
“What a fool believes he sees, no wise man has the power to reason away.” — Doobie Brothers, What a Fool Believes
“A common mistake that people make when trying to design something completely foolproof is to underestimate the ingenuity of complete fools.” — Douglas Adams
“Foolery, sir, does walk about the orb like the sun; it shines everywhere.” — Shakespeare, Twelfth Night, II, v
“A fool sees not the same tree that a wise man sees.” — William Blake
“Let a fool hold his tongue and he will pass for a sage.” — Publilius Syrus
“No creature smarts so little as a fool.” — Pope
“He that trusteth in his own heart is a fool.” — Proverbs 28:26
“A learned fool is more foolish than an ignorant one.” — Molière
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