“Quote Unquote”
January 3, 2020 § 2 Comments
“The greater part of what my neighbors call good I believe in my soul to be bad, and if I repent of anything , it is very likely to be my good behavior. What demon possessed me that I behaved so well?” – Henry David Thoreau
“”How far should one accept the rules of the society in which one lives? To put it another way: at which point does conformity become corruption? Only by asking such questions does the conscience define itself.” – Kenneth Tynan
“I will not do that which my conscience tells me is wrong to gain the huzzahs of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right, though it should draw on me the whole artillery that falsehood and malice can invent, or the credulity a deluded populace can swallow.” – William Murray, Earl of Mansfield, Lord Chief Justice of England
Looking Ahead to 2020
December 30, 2019 § Leave a comment
If hindsight is, indeed 2020, then it follows that 2020 should be the year of hindsight, right?
But we do have some things to look forward to in 2020. So using foresight, here are some:
- A slew of amended MRCP. The Supreme Court Civil Rules Advisory Committee has been busy over the past two years studying and revising the MRCP and Advisory Committee Notes to make them more functional, to address problems that have surfaced since the rules were adopted in 1982, and to clear up inconsistencies. The committee has sent a number of proposed amended rules up to the MSSC, and already the court has published an amended Rule 26. Look for plenty more in 2020. In fact, go to courts.ms.gov and click on Research/Rules/ Rules for Comment and you’ll see many there now for your study and comment. I encourage you to add your thoughtful comments. The end result of the changes will be more clarity and functionality.
- New chancery court rules (UCCR). In October, the Conference of Chancery Judges unanimously approved new, revised UCCR and filed a motion with the MSSC to adopt them. If the court does adopt them, the several of you who do read and try to follow them will find them more accessible, clearer, updated, and consistent in form.
- The GAP Act. It will be a new era for guardianships and conservatorships. Gone will be the confusing and sometimes contradictory web of statutes, replaced by a more streamlined system with clearer nomenclature and procedures. Yes, there will be a learning curve, and, yes, there are some tweaks that must be done in the upcoming legislative session to address some questions, but overall it will be an improvement.
- Bell on Mississippi Family Law. Professor Bell is working on the third edition of her treatise, and it should be out in the new year.
- New law every Tuesday and Thursday. For those of you who have bemoaned developments like those mentioned above, don’t forget that the law is ever-changing and evolving. Always has been and always will. If you question that, just read the hand-downs from the COA and MSSC every Tuesday and Thursday. There you will find weekly revelations, some of which challenge or even wipe out your long-held legal assumptions.
Beef and Barley Soup
December 23, 2019 § 1 Comment
I haven’t shared a recipe in ages, but I have fixed this dish and found it so hearty and insanely delicious that I thought it a most humane thing to share. Enjoy.
BEEF AND BARLEY SOUP
6 large, meaty beef short ribs
3 celery stalks
1 onion
1 bell pepper
2 large carrots, scrubbed, not peeled
2 medium parsnips, scrubbed, not peeled
3 tbsp. vegetable oil or other high-temperature cooking oil
4 oz. whole white mushrooms
4 oz. porcini or shiitake (stems removed) mushrooms
3/4 cup barley
2-3 qts. beef broth
1 bay leaf
water as needed
salt and black pepper
Pat the short ribs dry and season them with salt. Leave them at room temperature at least one hour, but not longer than two hours. They should be at room temperature when they are cooked.
Coarsely chop the onion, bell pepper, celery, carrots, and parsnips.
Pour the oil into a heavy Dutch oven and bring to a shimmer over medium-high heat. Brown the short ribs two at a time, removing them when browned on all sides. Remove the short ribs and set aside.
Lower the heat under the Dutch oven to medium and add the carrots and parsnips, stirring enough to keep them from burning. When the vegetables begin to soften, add the onions, bell pepper, and celery. Cook until the onion begins to turn translucent.
Add ribs back to the pot, along with the barley, and beef broth. Top with the mushrooms. Add salt and pepper to taste. Bring to a boil. Lower to simmer and then taste, adjusting salt and pepper as needed. Simmer for 2 1/2 hours.
As the mixture simmers, a froth may rise to the top. You may skim it off or stir it in, as you prefer.
The soup is done when the meat is pulling off of the bone. Before serving, remove the bay leaf.
Serve one rib to a bowl of soup, or meat may be shredded from the bone for ease of serving.
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This soup improves overnight and is best served reheated the day after making it.
You will have an easier time browning the meat by doing at most two at a time; more and the pieces can steam, thwarting the caramelization process.
You may question whether some herbs or spices wouldn’t add lots more flavor. Maybe they would. Try some yourself. But that blend of onions, celery, bell pepper, parsnips, and onions adds a savory flavor that doesn’t require much embellishment.
Add more barley for a thicker soup.
Add beef broth or water as needed to thin or extend the soup.
Be sure to chop the vegetables coarsely. A mince or fine chop will result in vegetables that simply disappear in the cooking process.
Dried mushrooms add much flavor. If you use them, reserve the mushroom water and use it to replace some of the beef broth, but be sure to strain the water through a coffee filter to remove grit and debris.
I based this recipe on an internet recipe, but made my own changes. You are essentially braising the ribs; the soup is the delicious braising liquid. As with all braises, the meat will be fall-off-the-bone tender, so you won’t need to buy boneless ribs for eatability. Besides, meat on the bone has so much more flavor.
GAP Act Forms
December 20, 2019 § Leave a comment
The GAP Act forms published by the MSSC are now available on the Mississippi Judicial College web site.
Click on this link to access them. I will also add a page with the link at the GAP Act materials tab on this site.
Material Change
December 18, 2019 § Leave a comment
It’s elementary that modification of custody requires substantial evidence of a material change in circumstances of the custodial parent’s home that is having an adverse effect on the child, and it is in the child’s best interest to change custody.
In the recent COA decision of Munday v. McLendon, handed down December 3, 2019, Judge Lawrence laid out the law of material change so succinctly that you might find it useful when you need a chunk of authority in a similar case:
¶27. A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)).
¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).
Keep in mind that there is an exception to the requirement for showing an adverse effect. If the situation in the custodial parent’s home presents an immediate or strong likelihood of harm, the court can order a change of custody without a showing of adverse effect. In Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the court affirmed the chancellor who changed custody on proof that the custodial parent was doing drugs in the child’s presence, even though the child was excelling in school and showed no adverse effects. In Burrus v. Burrus, 962 So. 2d 618 (Miss. Ct. App. 2006), the court affirmed a chancellor’s change of custody of a teenage girl based on the custodial mother’s remarriage to a man who had been convicted of four counts of sexual assault on another 14-year old girl; there was no proof of any adverse effect of the marriage, and no evidence of impropriety by the new step-father.
Substantial Evidence in the Record
December 17, 2019 § 2 Comments
“So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So. 2d 944, 950 (Miss. Ct. App. 2004).
The COA, in the case of Butler v. Mozingo, decided November 12, 2019, reversed and rendered a chancellor’s decision that a material change in the custodial parent’s home had adversely affected the child. The COA held that there was not substantial evidence in the record to support the chancellor’s ruling. You can read the opinion for yourself. There is nothing particularly noteworthy about it, other than to the parties.
An understandable first reaction might be to conclude that the chancellor simply screwed up. But consider this: what if the chancellor felt strongly that the best interest of the child demanded a change in custody, but the lawyer failed to get substantial evidence of adverse effect into the record, and the chancellor went ahead and did what she believed was best for the child, substantial evidence or not. I’m not saying that is what happened here; in fact, the attorneys involved are all competent and experienced. What I am saying is that it’s on the attorneys to give the judge the proof she needs to support her findings.
Several years ago a chancellor, now retired, told me of a custody modification case in which the defendant-mother’s inexperienced attorney faced off against an experienced, highly competent family lawyer. The judge told me that he had misgivings about the plaintiff’s case, and he felt that the plaintiff’s advantage was his skillful lawyer, not his facts. The inexperienced lawyer did not even put on proof of Albright factors, perhaps because he did not even know about them. The trial had not been concluded when the chancellor told me about it, so I can’t tell you how he handled it, but that sort of situation creates a conundrum for the trial judge. On the one hand, the judge should not aid or assist either side in a contested trial. On the other hand, though, the best interest of the child is the polestar consideration. Should the judge call or examine witnesses per MRE 614 to flesh out the record? Should the judge stop the trial and appoint a GAL? Or should the judge let things play out and then rule as the judge did in Butler, above?
That’s something for you to ponder. If you want the judge to rule in your favor, you must give the judge all the ingredients she needs to do so. If you don’t your case will fail, either at trial or on appeal.
Technical Competence
December 16, 2019 § 2 Comments
Are you technically competent enough to protect your clients’ interests and represent them zealously?
As Philip Thomas pointed out in a blog post last month, 37 states already impose a duty of technical competence in their ethical rules. Mississippi will probably be the 50th, based on past experience, but most of us will probably be around when the requirement is imposed in Mississippi.
So what is technical competence, anyway? Here’s how one proposed rule defines the duty:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject [My emphasis].
All of that looks like the existing duty to stay current with case law and changes in rules and practice EXCEPT for the highlighted language “including the benefits and risks associated with relevant technology.” That’s a pretty broad statement. What exactly is relevant technology?
Some benefits and risks are apparent to even the most technically illiterate person. For example, MEC, computer word processing, computer billing, and online research we can recognize are benefits. On the other hand, if you send an email with confidential information to opposing counsel, or if you send a document with unredacted metadata, or if don’t protect your servers from hackers, you soon find out what are the risks. I guess that’s part of what the rule considers “relevant technology.”
Those are fairly obvious and familiar to almost all of us. But there are developments in technology and the law that only a few know about and it will be a while, if ever, before they reach the mainstream. If I knew what they were, I’d itemize some for you. Are those cutting-edge changes included in what one is chargeable for?
As of right now, I think lawyers are already under a duty to understand the risks and benefits of internet communication, electronic discovery as practiced by the great majority of lawyers, wireless communication, metadata, and internet security, and to take appropriate steps to protect from or reap advantages out of them.
Fortunately, the number of older lawyers (my age group) who only a few years ago proudly boasted of computer illiteracy (“I don’t even know how to turn one on! Haw, haw, haw!”) is shrinking. Some of that shrinkage may be due to attrition, but I think mostly it’s due to the fact that they have come to understand that keeping up with changing technology, in some degree, is vital for survival in the profession.
One thing you might find helpful is to follow Mr. Thomas’s blog. He often touches on technical developments in the law.
The Better Chancery Practice Blog 