Ten Commandments for Your Divorce Case
January 22, 2020 § 4 Comments
This is adapted from a handout that a Tennessee law firm gives to every divorce client. The client is required to date and sign the form, which is kept in the client’s file, presumably for “Didn’t I tell you not to do that?” purposes.
TEN COMMANDMENTS FOR YOUR DIVORCE CASE
I. You are still married until the judge signs the Final Decree of Divorce.
a. You can not date or have sex or sexual contact with anyone, including your spouse, even if you are living together.
b. If you have sex with anyone, it will give your spouse grounds for divorce based on adultery, complicate your case, and cost you money.
c. Your spouse will review your cell phone records and computer activity during the divorce.
II. Do not post to any social media or allow anyone to post on your behalf.
a. No pictures or comments about your divorce on Facebook.
b. No tweets about the divorce or your spouse on Twitter.
c. Do NOT sign up for eHarmony, Match.com or any other dating site.
d. Do NOT post to hook up with anyone on Craig’s List.
e. Do NOT send lewd pictures to anyone.
III. Do not discuss your attorney’s strategy or any details of your divorce with your spouse, friends, or co-workers.
a. Every divorce is different, and what allegedly worked in your friend’s case will not work in yours.
b. If you tell your spouse details about your case, you will lose leverage and it will cost you more money.
IV. Establish a new, secure email account with a password that your spouse can’t guess.
a. Make sure your computer is free of spyware and that you have it password protected.
b. Password protect your cell phone.
V. Be totally honest with your attorney and the staff, and treat them with respect and courtesy.
VI. Remember that, as soon as the divorce complaint is filed, you are no longer in charge of your life. The Court is in charge.
a. You must comply with every order of the court, even if you disagree with the court’s ruling.
b. Do not harass, drunk call or text, follow, shadow, or in any way interfere with your spouse. Judges hate that kind of behavior.
c. Do not make changes to insurance without consulting your attorney first.
VII. Immediately answer interrogatories and requests for production of documents from your spouse’s attorney.
a. There are deadlines that can complicate your case and cost you money if you fail to meet them.
b. Follow the attorney’s directions on how to respond.
c. Do the necessary leg work to collect the necessary information, and organize it. The better you do it, the more money you will save. We have to charge you for the work we do for you.
d. Organize and keep succinct notes about your spouse’s misconduct.
e. Organize and create a record of all financial assets and accounts.
f. Do NOT staple any of the documents you bring us. Organize them by question or request number, preferably in folders.
VIII. Do NOT put your children in the middle during the divorce.
a. We recommend and urge that you immediately enroll in a parenting seminar at http://www.parentingskillsinstitute.com.
b. If your children are having issues, get them to counselling.
IX. Read everything our office sends you … at least twice.
X. You must pay your bill promptly as it comes due and provide additional retainers as requested. To keep your bill down:
a. Avoid endless phone calls and emails to our office. You are charged for every form of communication.
b. Organize your thoughts, questions, and concerns so that only one phone call, email, or office visit covers all issues.
c. Do not send an email and then follow up with a phone call to discuss the same things.
d. Consider finding a good counselor to help deal with the stress of divorce.
Sealing the Record
January 21, 2020 § Leave a comment
In the course of litigation between Fulgham, a lawyer, and his former law firm, Morgan & Morgan, PLLC and PA, the chancellor sealed the record at the PLLC/PA’s request. Fulgham objected to no avail. After he lost the case on other grounds, he appealed. One issue he raised was that the file should not have been sealed.
The COA reversed and remanded in Fulgham v. Morgan & Morgan, decided December 17, 2019. The court divided with J. Wilson, Westbrooks, Tindell, and McDonald concurring, Greenlee concurring in part and dissenting in part without separate opinion, Lawrence concurring in part and dissenting in part with separate opinion joined by Barnes and Greenlee. Carlton, McCarty, and C. Wilson did not participate. Lawrence’s concurrence/dissent refers to the “majority opinion,” so I will go with that term. J. Wilson wrote for the majority:
¶23. As noted above, following the initial ex parte hearing, the chancery court granted P.A./PLLC’s request to seal the entire case. P.A./PLLC stated in their written motion to seal the file that the case “concern[ed] confidential client information and communications, bound by attorney client privilege.” P.A./PLLC did not elaborate or provide any specific support for this claim in their motion or at the ex parte hearing. Nonetheless, the chancery court’s TRO provided “that this matter shall be sealed.” Fulgham later moved to lift the seal, but the chancery court did not address his motion. On appeal, Fulgham again moved to lift the seal, but a panel of the Supreme Court denied his motion, stating only that Fulgham’s motion was “not well taken and denied.”[Fn omitted]
¶24. Our Constitution mandates that “[a]ll courts shall be open,” Miss. Const. art. 3, § 24, and “Mississippi law favors public access to public records.” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). In addition, a court may, within its discretion, determine that court filings or information contained therein “should be declared confidential or privileged” and sealed from public disclosure. Id. at (¶16). However, before sealing an entire case, a trial court should first “conduct the balancing test set out in Estate of Cole,” supra. Smith v. Doe, 268 So. 3d 457, 464 (¶27) (Miss. 2018); accord Butler Snow
LLP v. Estate of Mayfield, 281 So. 3d 1214, 1220 (¶¶27-29) (Miss. Ct. App. 2019). That test balances the claimed private interest in confidentiality against the public interest in open courts. Estate of Cole, 163 So. 3d at 924, 929 (¶¶11, 32-33).
¶25. In this case, the chancery court did not conduct any balancing test or any analysis of P.A./PLLC’s request to seal the entire case. The order sealing the case was simply entered following an ex parte hearing. Yet it is not clear that the court file in this case contains any privileged attorney-client communications or confidential client information. To the extent that it does, specific documents can be redacted or filed under seal as necessary. But the fact that a few specific filings may contain privileged or confidential information does not warrant sealing the entire case from public view.
¶26. In addition, although the Attorney Retention Agreement between Fulgham and P.A. to the public by action of the trial court . . . shall be closed to public access in the appellate courts and shall be treated as a confidential case by the clerk of the appellate courts.” contains a one-sided confidentiality provision, [Fn 13] that provision does not warrant sealing the entire the Agreement or the entire case. In this case, P.A. chose to make the Agreement a public judicial record by filing it in court and asking the court to interpret and enforce its terms. Once P.A. invoked the judicial process to enforce the Agreement, it was no longer entitled to insist that the Agreement remain confidential. See Estate of Cole, 163 So. 3d at 928 (¶28) (discussing Bank of Am. v. Hotel Rittenhouse Assocs., 800 F. 2d 339 (3d Cir. 1986)). Rather, the Agreement became a public record in a judicial proceeding, presumptively open to the public. Bank of Am., 800 F.2d at 345. It is conceivable that specific terms of the Agreement are sufficiently confidential and sensitive that parts of the Agreement could be redacted. [Fn 14] But the chancery court’s order sealing the entire case did not address that issue.
[Fn 13] The Agreement prohibits Fulgham, but not P.A., from disclosing the contents of the Agreement.
[Fn 14] On appeal, Morgan & Morgan has asserted that the Agreement contains “trade secrets.”
¶27. In summary, while a court has discretion to seal or require the redaction of court filings that contain confidential or privileged information, Estate of Cole, 163 So. 3d at 925 (¶16), the court must first balance the asserted private interest in confidentiality against the public interest in open courts and transparent judicial proceedings. Id. at 924, 929 (¶¶11, 32-33). The chancery court in this case failed to do so and abused its discretion by sealing the entire case file. Therefore, we vacate the chancery court’s order sealing the entire case. On remand, the chancery court may determine what, if any, part of the record should be sealed or redacted under the Supreme Court’s decision in Estate of Cole.
Mayfield was discussed here at this link.
Bell Dates for 2020
January 17, 2020 § Leave a comment
Might as well annotate your calendars now for the Bell Family Law seminars upcoming in 2020. Here are the dates:
July 10 Jackson
July 24 Oxford
July 31 Mississippi Gulf Coast
I have said it here before: there are other Mississippi family law seminars, but there is no better Mississippi family law seminar. You will receive a handout summarizing all of the 2019-2020 cases. The lectures analyze the case law and discuss related issues, which in the past have included reproductive technology and bankruptcy. There is an ethics hour.
The only benefit I gain from mentioning this is the improved performance of lawyers who have attended the seminar. And for any judge that is quite a valuable benefit indeed.
And Then There Was One
January 15, 2020 § 11 Comments
Back when I started this blog in 2010, there were some entertaining, informative Mississippi lawyer blogs that I read regularly. These were on my regular reading list:
Ipse Blogit was Jim Craig’s and Matt Eichelberger’s fun, mildly muckraking, always satirical entry. After resurrecting it from a hiatus, they stopped publication entirely only a few months after I started.
NMiss Commenter was started by Tom Freeland as a real-time report on the Scruggs scandal and morphed into its own freestanding general-purpose entertainment and must-read daily until Tom’s untimely and unexpected death early in 2015.
Thus Blogged Anderson was erudite, humorous, and subtle, as well as full of book recommendations and insight. Anderson exited the stage for Twitter a few years ago, where he may still hold forth. I don’t know. Twitter can be bad for my blood pressure, so I avoid it.
randywallace posted on law, hunting, cooking, and anything else he put in his crosshairs. His posts became less frequent over time; his latest was in August, 2019.
Jane’s Law Blog, which came along only a few years ago, kept us up to date on our appellate courts, but author Jane Tucker lost her server in 2019 and never recovered. Her site is still down.
MS Litigation Review and Commentary by Philip Thomas was for years a go-to site for following litigation stories and developed more recently into a resource for law-office technology and practice. On Monday, he posted that, after 11 years, he is ending his blog with a final post on March 2. I would not be surprised if fatigue is an element in that decision.
There may be other Mississippi non-marketing legal blogs out there that I have yet to discover, and I would like to hear from them if there are. Until then, when March 2 rolls around I guess that this will be the last Mississippi legal blog standing, so to speak. There’s a reason in common that most of those blogs have gone extinct: it’s hard to keep up, even burdensome.
If you’re considering blogging as other than a marketing tool, there are some pluses and minuses:
- Pluses include getting to express your views, coming into contact with a wide range of people you’d probably never meet otherwise, and the motivation to learn more about the subject on which you blog.
- Minuses include demand on your time (a biggie), the need to be mostly accurate and right, and the burden of the whole thing. You can minimize the minuses somewhat by posting irregularly and less frequently, but if you do you will have fewer readers; people like to find something new to read when they click on your site. And if you have only a few readers, what’s the point?
Finally, you have to find a niche. Jane, for instance, met a need by posting decision summaries and describing motion hearings and oral arguments. I have focused on chancery practice. Tom enlightened us on the law, food, the blues, and Mississippi culture. The others mentioned above all catered to readers searching for something specific. And, it’s important to understand that if you’re not a crisp, clear writer like Anderson or Tom Freeland, you probably shouldn’t blog.
Every blogger has the nagging concern about running out of worthwhile things to say. Philip Thomas hints at that in his announcement when he says, “In retrospect, it’s past time.” For me, as long as we have appellate courts burping out opinions twice a week, I have plenty of material to keep me occupied, so I feel (I hope not mistakenly) that I still have something worthwhile to say, and for now I will continue to soldier on.
Those bloggers up there inspired me to undertake this one. It came about after a telephone conversation with another chancellor about how to educate lawyers on compliance with the adoption statute in effect at the time. We talked about an information sheet and a couple of other ideas, but couldn’t come up with anything satisfactory. After hanging up, I returned to my computer where Tom Freeland’s blog was on the screen. A lightbulb went on in my head and the idea became this.
So soon there will be one. For now.
New MRCP 26
January 13, 2020 § 2 Comments
In case you missed it, the MSSC adopted a new version of MRCP 26 that went into effect January 1, 2020.
You can find it at this link. There’s too much new to cram into this space. You would do well to study it and change your practice accordingly.
As I see it, the changes will primarily affect three groups:
- Lawyers who do discovery.
- Lawyers who don’t bother to read the rules.
- Lawyers who use expert witnesses.
Reading
January 10, 2020 § 1 Comment
The Yellow House by Sarah M. Broom. This memoir of a black family in New Orleans East is at its core an everyman tale of wants and unmet needs, of dreams and expectations, of joys and disappointments, of high hopes and entropy, and ultimately of disaster and survival. To understand this family one must understand the house in which it lives and breathes and has its being, and the house’s relationship to it, and the relationship they have with each other, and with their neighborhood and city and the culture, and how the family gradually unravelled yet held together as the house decayed and was destroyed. Winner of the 2019 National Book Award. Highly recommended. Non-fiction.
The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington. Disturbing account of the rise and fall of pathologist Steven Hayne, who improbably performed thousands of autopsies a year, and dentist Michael West, who made a successful career claiming to identify perpetrators by teeth marks, and their impact on the Mississippi criminal justice system. The book principally focuses on the convictions of two men, Kennedy Brewer and Levon Brooks, who spent years in prison based on Hayne’s and West’s testimony until their ultimate exoneration. Non-fiction.
The Silent Patient by Alex Michaelides. An Englishwoman is charged with murdering her husband and then goes silent. Instead of being convicted, she is declared insane and is institutionalized. A psychotherapist takes on the task of getting her to talk. What has she been hiding with her silence? What does she have to say? The answers come with a surprising twist. An easy, entertaining read and NY Times best-seller. Fiction.
Ghost Soldiers by Hampton Sides. With the American army sweeping inexorably across Luzon in the Philippines toward Manila in 1944, Japanese soldiers burned alive 150 American prisoners of war at a prison camp on Palawan. Fearing a similar execution of 500 survivors of the Bataan death march at the Cabanatuan POW camp, a force of 120 American Rangers was sent deep behind enemy lines on a covert mission to save them. This is the story of the dangerous and daring rescue. The 2005 movie, The Great Raid, was based in part on this book. Non-fiction.
Manila Espionage by Claire Phillips. Medicine and food was smuggled in to the prisoners at Cabanatuan by a mysterious woman code-named “High Pockets.” She was an American, Claire Phillips, who posed as an Italian woman running a night club in Manila that was a favorite hang-out for Japanese military officers, officials, and businessmen from whom she extracted valuable intelligence that she passed on to Americans and Filipino guerillas. She spent much of her profit to help the American prisoners and Filipino guerillas. Later arrested, tortured, and imprisoned, she refused to betray her accomplices. After the war she was awarded the Medal of Freedom and $1.3 million for her services. This is her story. Non-fiction.
The Magic of Reality by Richard Dawkins. Ultra-realist and non-believer Dawkins employs science, facts, and logic to answer questions such as what is magic, when and how did everything begin, and what is a miracle, among others. Not recommended for readers who do not care to have their beliefs and preconceptions challenged. Non-fiction.
The Judge Hunter by Christopher Buckley. In 1664, after the Restoration of Charles II, Samuel Pepys’s brother-in-law, nicknamed “Balty,” is dispatched to America to hunt down and arrest two of the judges who signed the death warrant for Charles I that resulted in his execution. Balty soon finds himself tangled in intrigues and a larger stratagem that changes the course of history. Based in part on the diaries of Samuel Pepys. Witty and well-written, not just for history nerds. Fiction.
The Mississippi Secession Convention by Timothy R. Smith. Secession was a sure thing when Mississippi delegates convened in Jackson after Lincoln’s 1860 election. But what form would it take? Negotiate for concessions? An ultimatum? Wait and see? Follow other seceding states? The debate and profiles of the delegates are limned out in detail. Anyone who clings to the notion that the Civil War was not about slavery should read this book and Mississippi’s Declaration of the Causes of Secession authored by L.Q.C. Lamar. Non-fiction.
Chasing the Scream by Johann Haari. The story of the drug war, from its earliest days 100 years ago to now, its failure, the corruption and illegal cartels it has spawned, and the human wreckage it has produced. Non-fiction.
A Sand County Almanac and Sketches Here and There by Aldo Leopold. One of the earliest conservationists, professor Leopold chronicled the changing seasons on his farm in Wisconsin in near-poetic prose that reveals the majesty and marvel of nature. Included with his almanac are some of his essays on ecology and conservation. Non-fiction.
Life and Fate by Vasily Grossman. Novel of the WWII siege of Stalingrad through the eyes of several civilians and soldiers. Grossman, who was the first allied journalist to enter and report about a liberated German death camp, intended his novel to be the Soviet War and Peace. Instead, it was banned and all copies, and even the typewriter ribbons on which they were typed, were confiscated by the KGB due to the parallels the book draws between Hitler and Stalin and the two countries’ slave-labor and death camps. But a manuscript was smuggled to the west and published in 1980, 16 years after the author’s death. This book is an immense slog of 871 pages (only about half the length of Tolstoy’s opus, though) in paperback, recommended for the most dedicated of readers only. Fiction.
Is a Step-Grandparent a Grandparent?
January 8, 2020 § Leave a comment
Not for grandparent visitation purposes, says the MSSC.
That was one of the holdings of the court in the case of Garner (aka Garcia) v. Garner, decided October 3, 2019.
In that case, the chancellor modified custody of Andrew, awarding an uncle custody, and allowed visitation with the maternal grandparents, Judi and Ron. Ron was the child’s step-grandfather. The mother, April, appealed.
Justice Griffis wrote for a 5-4 court:
¶85. The chancellor determined that Andrew’s best interests would be served by allowing visitation with his maternal grandparents, Judi and Ron. April argues the chancellor erred by awarding grandparent visitation to Ron. She does not contest or appeal the chancellor’s award of grandparent visitation to Judi.
¶86. April asserts that Ron does not meet the statutory criteria for grandparent visitation because he is a step-grandparent. Whether a step-grandparent has a right to petition to seek visitation with the child depends entirely on whether he or she is a “grandparent” within the
meaning of Mississippi Code Section 93-16-3 (Rev. 2018). This presents an issue of statutory interpretation, which is reviewed de novo. T.T.W. v. C.C., 839 So. 2d 501, 503 (Miss. 2003).
¶87. Grandparents do not possess a common-law right of visitation. Smith v. Wilson, 90 So. 3d 51, 58-59 (Miss. 2012). Such a right is purely statutory. Section 93-16-3 provides,
(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
Miss. Code Ann. § 93-16-3 (Rev. 2018).
¶88. Section 93-16-3 does not expressly define “grandparent,” but it does refer to a grandparent as the “parent of a child’s parent.” Miss. Code Ann. § 93-16-3(1). Notably, no reference is made to a step-grandparent in the statute.
¶89. In Lott v. Alexander, 134 So. 3d 369, 374 (Miss. Ct. App. 2014), the court reversed the chancellor’s award of visitation to great-grandparents. The court noted that “[n]either subsection one or two of 93-16-3 purports to authorize visitation awards to greatgrandparents.” Id. at 372. The court found that “[g]iving the term ‘grandparent’ its plain and ordinary meaning, the intent of the Legislature is clear and unambiguous.” Id. at 373. As a result, the court found it “lack[ed] authority to add words or meaning to a statute that is plain on its face.” Id. at 374. Additionally, in Pruitt v. Payne, 14 So. 3d 806, 811 (Miss. Ct. App. 2009), the court found a stepfather “ha[d] no right to visitation with his stepchildren under the laws of the State of Mississippi.”
¶90. Here, as in Lott, “[n]either subsection one or two of [Section] 93-16-3 purports to authorize visitation awards to [step]-grandparents.” Id. at 372. This Court does not have the “authority to write into the statute something which the Legislature did not itself write therein, nor can [this Court] ingraft upon it any exception not done by the lawmaking department of the government.” Id. at 373 (quoting Wallace v. Town of Raleigh, 815 So. 29 2d 1203, 1208 (Miss. 2002)). “While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to step[-grandparents].” Pruitt, 14 So. 3d at 811.
¶91. Because Ron, as Andrew’s step-grandparent, does not meet the criteria of a “grandparent” under Section 93-16-3, the chancellor erred by granting Ron grandparent visitation rights with Andrew. [Fn 11] Accordingly, we reverse and render on this issue.
[Fn 11] Although Ron has no legal right to grandparent visitation under Section 93-16-3, nothing in Section 93-16-3 prevents Ron from visiting or having a relationship with Andrew. “[T]the more familial bonds a child has is generally better for the child . . . .” Lott, 134 So. 3d at 374 (quoting Cole v. Thomas, 735 S.W.2d 333, 335 (Ky. Ct. App. 1987)).
You probably were scratching your head as I was over what difference this ruling would make for Ron. He would undoubtedly get to see and visit with the child when Judi had him, and most likely any other time he wanted, because he, Judi, and the uncle were allied in this case (and then the court pointed that out in Fn 11).
The difference here is the case’s precedential value. Now Mississippi law is that step-grandparents are not grandparents for purposes of the grandparent visitation statute.
Justice King wrote a sharp dissent.
The Better Chancery Practice Blog 
Rules for Comment
January 14, 2020 § 4 Comments
Yesterday I mentioned the high court’s order amending MRCP 26.
There is plenty of other change to the MRCP in the works.
If you will go to the MSSC’s site and click on Research/Rules/Rules for Comment, you will find nine MRCP posted inviting your comments.
The rules currently for comment are (Clicking on the link will take you to the committee’s motion):
29 Stipulations regarding discovery.
30 Depositions.
33 Interrogatories.
34 Production of documents and entry upon lands.
37 Failure to make or cooperate in discovery.
43 Taking of testimony.
45 Subpoena.
46 Exceptions unnecessary.
54 Judgments and costs. There also is a separate letter motion .
Although the comment deadline has elapsed on all but one posted rule, I have been old that the court will consider all comments received until the court takes up the rule for action. If my info is correct, why not take the opportunity to have your input?
The Advisory Committee on Civil Rules has sent more than a dozen more proposals for changes to other MRCP that the court has not (yet) put up for comment. Stay tuned.