Designed to Fail
February 12, 2015 § 3 Comments
The COA case Miles v. Miles, handed down January 27, 2015, is a study in how not to draft a PSA.
Carlos and Brenda Miles had gotten an irreconcilable-differences divorce in 2000. The PSA included the following language:
“[Carlos] shall place [Brenda’s] name on his Individual Retirement Account (IRA) Certificate of Deposit at [the] Bank of Mississippi, as joint tenants with full rights of survivorship.”
When Carlos went to do what the language required of him, he was spurned by the bank because an IRA (note that the I stands for Individual, not joint) can only be in the name of the owner; there is no such thing as a jointly-owned IRA.
A dozen years later, Brenda had to go back to court to get the chancellor to re-jigger the arrangement to get what she should have been entitled to in the first place. That’s a second trip to court, with a second set of attorney’s fees and separate time away from work and other lifely activities to set right what could have been addressed in 2000 with effective language in the PSA.
Aside from the glaring fact that the agreement required the parties to do the impossible, it also failed to set out the balance in the account, or to state that each party was to own one-half (or any other percentage), or to establish who would have the tax responsibility. No date was set to carry out the agreement.
When you draft a PSA, don’t just take your client’s notes and couch them in legalese sufficient to pass your judge’s scrutiny. Engage your brain and bring your training, background, and experience to bear for the benefit of your client.
Your responsibility, as a competent lawyer, is to draft an agreement in such a way that it will do everything it is supposed to do with the result that your client intended, without any court ever having to guess what the language meant. That is a lofty responsibility, and to do it right requires a thoughtful, careful approach. Slapping some words together on a page to satisfy a client today will only buy that client grief and resentment against you later (hopefully after the statute of limitations has run).
If you approach every agreement you draft with this responsibility in mind, you will not achieve the goal 100% of the time. No lawyer is perfect. But if you aim for 100%, your success rate will be considerably better than most other attorneys, and unquestionably better than that of the word-slappers.
The needless train wreck in this case could have been avoided if the agreement had said that the IRA would be divided, one-half each (or even better, stating specific amounts), and that hers would be deposited (or rolled over) into her own qualified account, and that each party would be responsible for the tax consequences associated with his or her own share of the account.
If you don’t understand how these things work, I suggest you refer these type clients to someone who can do a competent job.
… And More on Pitfalls of TRO’s …
February 11, 2015 § Leave a comment
Adding to the thoughts about TRO’s from Monday …
Chancellor David Clark rendered an opinion in a case in which he had granted a TRO without notice, but concluded at the full hearing that it was unfounded. Here is an excerpt from his opinion on the defendant’s motion for sanctions:
The dismissal of a complaint, whether by the Court or by the plaintiff, operates as a dissolution of any injunction issued thereunder. It also establishes the fact that it was wrongfully sued out and that the defendant is entitled to recover whatever damages he sustained by the issuing of the same. Warner’s Griffith, Mississippi Chancery Practice (Rev. Ed.), §463, citing Johnson v Howard, 141 So. 573 (Miss. 1932), and Day v McCandless, 142 So. 486 (Miss. 1932).
Rule 65(c), Mississippi Rules of Civil Procedure, provides:
(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Mississippi or of an officer or agency thereof, and provided further, in the discretion of the court, security may not be required in domestic relations actions. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (Emphasis added)
In Broome v Hattiesburg Building and Trades Council, 206 So.2d 184 (Miss. 1967), the Court held that: . . . [I]t has become well settled in this state that in suits upon injunction bonds no recovery may be had against principal or sureties in excess of the penalty of the bond. Broome, 206 So.2d, 188.
Further, as noted in 42 Am Jur 2d, Injunctions, §359: It is the well-established general rule that there is no liability in tort for the damages caused by the wrongful suing out of an injunction, unless the circumstances give rise to a cause of action for malicious prosecution. . . On the other hand, the statutes of the majority of the states require an injunction bond, under which the principal and surety may be liable for damages if the injunction is wrongful or is dissolved.
Also, see 43A C.J.S., Injunctions, §314: Under statutes so providing, damages may be awarded where occasioned by the wrongful entry of an injunction, and liability may be fixed by the bond the complainant is required to give as a condition to the granting of the injunction, as discussed infra §315. Apart from such statutory liability, since the seeking of injunctive relief is not a tort, in the absence of a bond or security there may be no recovery of damages for the issuance of an injunction, even though it may have been granted without just cause; and recovery may not be had unless the person enjoined can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.
The bottom line is this: (1) The Chancellor has the discretion, but is not required, under MRCP 65(c) to waive the requirement of bond in domestic relations actions1; (2) If the Chancellor, in the exercise of that discretion, waives the requirement of bond, the defendant is precluded from thereafter recovering damages of and from the plaintiff for the wrongful suing out of the TRO; (3) unless the defendant can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.
In this action, since the requirement of bond was waived by the Chancellor issuing the TRO, the defendant is precluded from recovering her damages in this action. However, this does not prevent her from filing an action in tort. Therefore, the Amended Motion of the Defendant for Sanctions will be, and the same is hereby denied and dismissed.
Based on that authority, I think that the idea of a bond in domestic TRO’s without notice is something that should move from the rear of the judge’s mind to the forefront. It’s a way of establishing some balance in the situation, because we are being asked to grant immediate relief without giving the other side any opportunity to be heard. The bond requirement can discourage less-than-meritorious filings while at the same time providing insurance that the defendant will not be out attorney’s fees and costs if the case is dismissed. In other words: you can proceed with this if you really believe it will stand up, but there will be something at stake if it does not.
Of course, the chancellor can always exercise discretion to waive bond in exigent cases.
I am not aware of any cases under the Litigation Accountability Act or MRCP 11 involving dismissed TRO’s. If anyone knows of any decisions, please let us know. There should be no impediment to proceeding under either authority, as far as I know.
Finally, here are some sage observations that Judge Clark added on the subject of TRO’s without notice:
My experience has taught me that the granting of a TRO without notice only exacerbates the tension and strife between the parties, and between their counsels. I understand that. If I were at home on a Saturday watching a game on TV and a deputy Sheriff knocked on my door and told me I have to move out of my house, immediately, and allow the deputy to take my son to his mother, all without notice to me, I would be upset; I would be convinced that “the fix is in.” I have found that I can better deal with the issues if both parties are present before the Court. If I can look both parties in the eye and explain to the husband, for instance, why I feel he needs to move out of this house and why I think the children should go with their mother, he at least has had an opportunity to participate and to have his say. He may disagree with the ruling but he has not been denied his right to participate; his due process rights. In almost every case wherein I have been asked for a TRO without notice, I subsequently find at a hearing with both parties present that the factual situation has been exaggerated and distorted. Your experience may be different and I would not presume to indicate otherwise. I am only suggesting that we, as Chancellors, should be wary of TRO’s without notice. I think that is what Rule 65 requires.
A Few Thoughts about TRO’s
February 9, 2015 § 3 Comments
Before you read any farther, please go back and read this previous post about TRO’s that Work.
It seems that lawyers seeking injunctive relief via temporary restraining orders (TRO’s) is becoming a more frequent phenomenon in chancery court. The scenarios are varied, but the common thread is that the party seeking a TRO under MRCP 65 wants something pre-emptive done right now.
The most problematical TRO is the one issued without notice. It’s problematical primarily because it requires the judge to issue an order that restrains the other party without the opportunity to be heard. In case you’ve forgotten since law school, that right to be heard is not only a maxim of equity, but it is also commonly referred to as “due process,” as guaranteed in the Fifth Amendment to the US Constitution, a right generally regarded as the cornerstone of our justice system.
So here are a few thoughts:
- Judges don’t like TRO’s without notice. They go against the grain of just about everything our court system stands for. That does not mean that in the necessitous circumstance the judge will not grant it. It means rather that you can expect scrutiny, skepticism, and close questioning from the chancellor. Why can notice not be given to the party, or, in the case of pending litigation, to counsel opposite?
- Simply pleading that this is an emergency situation does not elevate your case to the standard required by MRCP 65.
- Your complaint must either be sworn to by the party with actual knowledge or include an affidavit of such a person. Specific facts must be stated. General conclusions, labels, supposition, speculation, and hearsay will not do the job.
- The complaint must describe what irreparable injury will result if the relief is not granted before the other side can be heard in opposition.
- The attorney must present a separate certificate stating the efforts, if any, that he or she has made to give notice to the other side, and reasons why advance notice should not be given.
- If you lack any of the required essentials of R65, your request will be rejected.
Asking for TRO relief is one of those things that can take a toll on your reputation with the court. Unfounded or unsuccessful TRO attempts sound like crying wolf, and can undermine your credibility with your judge. If you have to file for R65 relief, particularly without notice, make sure the claim has merit, warrants action without notice, and will bear up under cross-examination at the full hearing.
Legislation Watch
February 5, 2015 § 6 Comments
Here is a list of bills that may affect chancery court practice, are still pending before the legislature, and are “not dead” as of 2-3-15:
|
Rule against perpetuities; revise with respect to certain trusts. |
|||
|
Estates; provide for a statutory order of abatement for shares of distributees of property of a deceased. |
|||
|
Foreign executor or administrator; revise authority of financial institutions to turn over property or funds of a decedent to. |
|||
|
Conservator; allow appointment for a single transaction. |
|||
|
Courts; prohibit from applying foreign law under certain circumstances. |
|||
|
Divorce; revise habitual cruel and inhuman treatment to include verbal, emotional or psychological abuse. |
|||
|
Commercial Real Estate Broker Lien Act; clarify definition of “commercial real estate” under. |
|||
|
Title disputes; clarify jurisdiction of state courts in certain. |
|||
|
Domestic violence; revise procedures related to. |
|||
|
Child abuse; clarify mandatory reporting by school officials. |
|||
|
Child neglect; add children left alone in motor vehicles to definitions of. |
|||
|
Estate bond requirement; authorize court or chancellor to waive. |
|||
|
HB 703 |
Judicial redistricting; revise. |
||
|
Visitation rights; amend Grandparents’ Rights Law to include great-grandparents. |
|||
|
Suits against the state; Supreme Court to have original jurisdiction for claims seeking injunctive relief. |
|||
|
Landlord-tenant; provide for disposition of personal property remaining on the premises after removal of the tenant. 01/28 (H) Title Suff Do Pass |
|||
|
HB 713 |
Mississippi Private Investigation Regulatory Act; create. |
||
|
Property Insurance Clarity Act; create. |
|||
|
Court reporters; increase salary for those in circuit, chancery and county courts. |
|||
|
HB1101 |
Professional privilege tax; impose on persons who practice in state and who are not domiciled in and do not maintain regular place of business in state. |
||
|
HB1319 |
Marshals and constables; revise fees charged for service of process. |
||
|
Domestic violence; clarify entry of criminal protection orders in the registry. |
|||
|
False report of child abuse or neglect; provide criminal penalties and civil liability. |
|||
|
Visitation; allow to third party under certain limited circumstances. |
|||
|
Civil commitment; include nurse practitioners as authorized evaluators. |
|||
|
Children in custody of DHS; require notification of parents of child’s siblings in conformity with federal law. |
|||
|
Child support; may continue past age of majority for a disabled child. |
|||
|
Court reporters; increase annual salary of. |
|||
|
SB2231 |
Constables; revise fees charged for service of process. |
||
|
Easements; clarify purchase of for access. |
|||
|
Uniform Interstate Family Support Act; create (corrected). |
|||
|
Mississippi Uniform Limited Partnership Act; revise and expand. |
|||
|
Real property liens; clarify Notice of Contest of Lien form. |
|||
|
SB2390 |
Service of process; sheriff may retain fee for attempt to serve. |
||
|
SB2542 |
Limited liability companies; delete repeal clause on fees. |
||
|
Legal proceeding; child witness to receive accommodations. |
|||
|
Trial courts; redistrict. |
|||
|
Mourn the loss and commend the life and public service of former Senator and Judge Ray Montgomery. |
|||
|
Mourn the loss and pay tribute to the judicial leadership of former Mississippi Supreme Court Chief Justice Roy Noble Lee. |
A Higher Duty
February 4, 2015 § 5 Comments
Many lawyers get into the mindset that winning is the most important thing, and it shows up in their take-no-prisoners, no-holds-barred, Rambo-ish approach to litigation. Discovery is adversarial and contested, sanctions are threatened at the slightest slight, and aggressive motion practice is used like a jousting match of yore.
Those lawyers point to the duty in our professional rules to represent the client zealously, within the bounds of the law. The emphasis, though, is on zeal.
Consider, however, this scenario:
You are representing a young mother in a custody contest. Her former husband is trying to get custody of their 3-year-old son, who has had bruises on his legs, and who has nightmares and is a bedwetter. The father knows something is wrong, and as discovery proceeds it is apparent that he does not have enough solid information to make a case of change in circumstances and adverse effect. The court has not appointed a GAL because the allegations to this point do not warrant it. You, however, learn as the case goes on that your client had a live-in boyfriend who did, indeed, whip the child. The boyfriend is a convicted felon with a violent history, and your client is afraid of him. The other side knows nothing about this, and has not even asked anything in discovery that your client had to lie about to conceal the information. When you confront her with the new-found information, she admits it, but assures you that she made the boyfriend leave during the litigation, although he has made it clear that he will return when the case is over.
What do you do? On the one hand, if you voluntarily disclose the information without a specific discovery request for it, you will have violated your client’s confidentiality. And the Rambo in you has to acknowledge that it will surely send the case plummeting from its heights as a sure winner to the depths of loserdom. On the other hand, it certainly does not seem like it’s in the best interest of the child to be in the mother’s home with that violent boyfriend, and you know your chancellor well enough to know that if those facts came to light, she would not hesitate to protect the child.
The highest and most serious duty of a chancellor is to do what is in the best interest of a child. The best interest of the child is always the “polestar consideration” in every custody and child-affecting decision in chancery court. The rules of evidence do not trump that responsibility, nor do considerations of winning and losing, attorney-client privilege, or anything else.
As an officer of the court, you may not do anything that thwarts the court in its duty. You may not stifle the truth in such matters, or suppress evidence, or do anything that will result in compromising the safety of a child.
So how can you act and still maintain the confidentiality of your client? If I were the attorney, I would file a motion for appointment of a GAL. No details need to be pled. You could recite that the father’s suspicions should be investigated for the best interest of the child, and leave it at that. A competent GAL will ferret out the truth.
A chancellor told me recently of a case he had in which he overruled the father’s petition to modify custody. It was unquestionably a case in which the father was unfit, and the mother’s situation was better for the child. It was not a close case. Seven months later, however, the mother’s live-in, convicted-felon-boyfriend shot and killed the four-year-old son because he wet the bed. No one hid the information that the mother had someone like that living with her from the judge; it was a situation that developed after the case was concluded. Had it been part of the facts existing at the time of the modification, the judge could have taken other measures to protect the child, but only if someone made it known.
In my opinion, in cases involving the best interest of a child, you have a higher duty.
A Publication Hiccup
February 3, 2015 § 2 Comments
Last week the Meridian Star newspaper failed to publish legal notices scheduled for Tuesday, apparently by oversight. The paper called the lawyers who had had items scheduled and offered to republish any way the lawyers directed.
This caused some heart palpitations that influenced two lawyers to seek out my position on the matter, since estates assigned to me were affected. Each were running second and third publications. They had directed the paper to publish on three consecutive Tuesdays, and were concerned about the variation in days.
Before getting to a response, let’s look at the two most commonly invoked provisions on point:
- MCA 91-7-145(2) states that notice to creditors in an estate, conservatorship, or guardianship ” … shall be published for three consecutive weeks.” The requirement clearly is that the publication be made once in each of three consecutive weeks. The day is immaterial.
- MRCP 4((a)(4)(b) for process by publication is even clearer. It specifically provides that ” … publication of said summons shall be made once in each week during three consecutive weeks …” Again, the specific day of the week is immaterial.
So the answer, simply, is that so long as the paper publishes your notice or process one time in each of three consecutive weeks, regardless of the days when the notices are published, you have met the requirement of the statute and the rule.
There are other notice statutes. When you must comply with one, follow the express language of the statute.
Sometimes we get caught up in old habits, like telling the clerk at the paper to “Run this the next three Wednesdays …” and that’s how we always do it because that’s how we’ve always done it. But it’s the specific language of the statute or rule that controls, not force of habit.
Trifling with Visitation is no Trifling Matter
February 2, 2015 § Leave a comment
Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.
In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.
In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”
Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.
In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.
The chancellor awarded Kristy custody and other relief, and Travis appealed.
On the issue of material change, Judge Griffis of the COA said this:
¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.
¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.
¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.
¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.
So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.
You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”
I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.
The Courthouses of Mississippi
January 30, 2015 § 8 Comments
Starting next month, I’m going to be posting photos of the courthouses of Mississippi.
The twist is that I am asking you to send me your photos to be published here. Here are the guidelines:
- The pic must have been taken by the submitter. Cell-phone pics are welcome.
- Sunshine shots only; no low-contrast, cloudy days.
- Please avoid power, cable, and telephone lines in your photos. Your favorite people or clients are fair game, though, if they are okay with it.
- You will be credited by name, unless, for some reason you’d rather not.
- I’ll post as many as 4-6 a month, provided I have them.
You can email them to me at lprimeaux@comcast.net.
By my reckoning, there are some 91 or 92 courthouses in Mississippi, and several more when you count separate chancery buildings, so this could take some time unless you send me your pics asap. I’m relying on you to provide me with the full compliment. Next time you head to a courthouse, take a minute to send me a photo.
If this goes well, we may try the courtrooms of Mississippi next.
