It is What it is
December 2, 2019 § Leave a comment
When it comes to contract interpretation, the first rule is that, if the language is unambiguous, the judge is bound by the language in the four corners of the document. The language there is what the parties agreed to, and that is what will be enforced. Settlement agreements incorporated into divorce judgments are contracts subject to the rule.
Jerry Collado and his wife Jennifer (now Tyndall) got an irreconcilable differences divorce. Their settlement agreement included this language:
“Husband agrees to continue to pay for the minor children’s private school education, so long as the parties jointly agree for the children to be enrolled in private school, including tuition and registration fees, continuing through each child obtaining a high school diploma … “
When Jerry decided that he no longer agreed for all of the children to attend private school, Jennifer filed a petition to modify seeking an order requiring Jerry to continue to pay private school expenses for all of the children. At hearing, Jerry testified that he had agreed to the language in the agreement because he wanted to pay the private school expenses as long as he was able, but overtime had become uncertain and his expenses had increased, so that he suggested only the two older children finish at the private school.
The chancellor ruled that the children had always attended the private school, Jerry had always paid, and his financial statement did not support his claim that he was financially unable to pay. He ordered Jerry to pay, and Jerry appealed.
In Collado v. Tyndall, decided October 8, 2019, the COA reversed and rendered. Judge Jack Wilson wrote the opinion for a unanimous court:
¶6. On appeal, Chris argues that the chancellor erred by modifying the clear and unambiguous terms of the parties’ child custody and property settlement agreement. He argues that the chancellor should have applied principles of contract law to the agreement and should not have considered his ability to pay. In contrast, Jennifer argues that a provision requiring a party to pay private school tuition is in the nature of child support and therefore is subject to modification.
¶7. We will affirm a chancellor’s findings of fact as long as they are supported by substantial evidence and are not clearly erroneous. Campbell v. Campbell, 269 So. 3d 426, 430 (¶13) (Miss. Ct. App. 2018), cert. denied, 258 So. 3d 285 (Miss. 2018). Our standard of review on pure issues of law is de novo. Id.
¶8. When, as in this case, the parties have complied with the irreconcilable differences divorce statute, their agreement concerning matters of custody, support, alimony, and/or property division “becomes a part of the final decree for all legal intents and purposes.” Switzer v. Switzer, 460 So. 2d 843, 845 (Miss. 1984). With respect to the division of marital property, the agreement “is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So. 2d 927, 931-32 (Miss. 1986). Therefore, “when parties in a divorce proceeding have reached an agreement that a chancery court has approved, . . . we take a dim view of efforts to modify [provisions regarding the division of property] just as we do when persons seek relief from improvident contracts.” Ivison v. Ivison, 762 So. 2d 329, 334 (¶14) (Miss. 2000).
¶9. However, provisions of the agreement regarding child support are treated differently. A court-approved agreement to pay child support is subject to modification, and the rules governing its modification “are the same as if the chancellor had made a support award after a contested divorce trial.” Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983). That is, the party seeking a modification of the agreement to pay child support bears the burden of proving “a material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch v. Finch, 137 So. 3d 227, 237 (¶33) (Miss. 2014).
¶10. Jennifer is correct that “private-school tuition is considered part of child support.” Bruton v. Bruton, 271 So. 3d 528, 534 (¶16) (Miss. Ct. App. 2018) (citing Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002)); accord, e.g., Gunter v. Gunter, No. 4 2017-CA-01767-COA, 2019 WL 1529265, at *2 (¶11) (Miss. Ct. App. Apr. 9, 2019); Elkins v. Elkins, 238 So. 3d 1204, 1211 (¶21) (Miss. Ct. App. 2018); Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). Therefore, provisions of a settlement and judgment concerning the payment of private school tuition are subject to modification.
¶11. However, Jennifer failed to prove any “material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch, 137 So. 3d at 237 (¶33). The only thing that changed was Chris’s position as to where two of his four children should go to school. Chris’s decision that two of his children should attend public school was a change in circumstances, but it was a change that the parties’ court-approved settlement agreement expressly contemplated. The agreement requires Chris to pay private school tuition only “so long as the parties jointly agree for the children to be enrolled in private school.”
¶12. This Court recently addressed an analogous issue in Campbell, supra. There, we held that the emancipation of one of the parties’ four children did not support a court-ordered modification of child support because the parties’ original child support agreement specifically provided for a $1,250 reduction in child support upon the child’s emancipation. Campbell, 269 So. 3d at 430-31 (¶¶14-16). We explained that when the parties’ agreement already provides for the possibility of a specific change in circumstances, that “exact situation” cannot be deemed “unforeseen” or “unanticipated”—and,therefore, cannot support a modification of support. Id. The same reasoning applies in this case. The parties’ court approved agreement specifically contemplated that Chris might decide that some or all of his children should no longer attend private school. Thus, Chris’s decision was foreseeable and is not a basis for a modification of support.
¶13. Under the terms of the parties’ agreement, Chris is not required to continue to pay private school tuition if he does not agree that his children should continue to attend a private school. The chancellor disagreed with Chris’s claim that he could not afford to continue to send all four of his children to private school. However, the parties’ court-approved agreement did not require Chris to persuade the court of the reasons for his decision regarding his children’s schooling. And Jennifer failed to prove any material, unforeseen change in circumstances that would have supported a modification of the agreement. Therefore, the chancellor erred by ordering Chris to continue to pay tuition for children that
Chris preferred to send to public school.
Can’t think of anything to add to that.
November 28, 2019 § Leave a comment
Thanksgiving Holiday
Courthouse closed
Next post December 2, 2019
R.I.P. Chancellor William Willard
November 27, 2019 § 3 Comments
Chancellor Willard of Clarksdale, was retired Chancellor of the 7th District.
Reportedly died when he suffered a heart attack while scuba diving with his family in the Caymans on November 25, 2019.
The official MSSC press release:
Retired Chancellor William G. Willard Jr. of Clarksdale died Nov. 25 while vacationing with his family in the Cayman Islands. Funeral arrangements are incomplete. Meredeth Nowell Funeral Home in Clarksdale is handling arrangements.
Judge Willard retired from the bench in December 2010 after serving 12 years as Chancellor of the 7th Chancery District that includes Bolivar, Coahoma, Leflore, Quitman, Tallahatchie and Tunica counties. He returned to private law practice in Clarksdale. Before his service as chancellor, he served for nine and one-half years as Clarksdale Municipal Judge. He also served on the Bar Complaints Tribunal.
R.I.P. Judge Billy Bridges
November 26, 2019 § 4 Comments
From the MSSC press release:
Retired Mississippi Court of Appeals Chief Judge Billy G. Bridges died on Nov. 25 at his home in Brandon. He was 85.
A funeral service will be held on Saturday, Nov. 30, at 11 a.m. at Ott and Lee Funeral Home in Brandon. Visitation will be Friday, Nov. 29, from 5 to 7 p.m. and Saturday, Nov. 30, from 9 to 10:30 a.m. Interment will be in Floral Hills in Pearl.
Judge Bridges served on the Court of Appeals for 11 years. He was one of the original members of the Court of Appeals. He was elected in 1994, and the Court of Appeals began hearing cases in January 1995. Judge Bridges served as Chief Judge from January 31, 1997, until February 17, 1999. He was named Presiding Judge on April 30, 2004. He retired Dec. 31, 2005, but did not hang up his robe. He became a senior status judge and presided over cases in the trial courts as a special judge for many years.
Supreme Court Justice Leslie D. King served together with Judge Bridges on the Court of Appeals. “We became close friends as we worked together. Billy was a very thorough and considered individual in his work. He took his time in looking very carefully at the matters before the Court. He cared a great deal about his work and the people who came before the Court,” Justice King said. “He was also concerned about the judiciary and the appearance of the judiciary to the public. Billy was a fine example of what you would want to see in a judge. He is someone whom I’m happy to have known as a colleague and a friend.”
Court of Appeals Chief Judge Donna Barnes of Tupelo also served with Judge Bridges. “It was an honor to serve with him. The vast experience he brought to Court of Appeals deliberations was truly remarkable,” she said.
Before his election to the Court of Appeals, Judge Bridges served as a chancery judge of the 20th Chancery District of Rankin County. He was district attorney for the 20th Circuit Court District of Rankin and Madison counties, and Rankin County prosecuting attorney. He served in other legal positions including board attorney for the Town of Florence, the Town of Pelahatchie, the Rankin Medical Center, and the Rankin County School Board. He spent more than 38 years in public service, not including his work as a senior status judge. He practiced law in Rankin County for 33 years. Former Supreme Court Chief Justice James W. Smith Jr. was one of his law partners in private practice.
Judge Bridges grew up in Pearl. His family moved from Simpson to Rankin County when he was two. He graduated from Pearl High School in 1952. He attended Hinds Community College before going to the University of Mississippi, where he earned a bachelor of business administration degree in 1958. Judge Bridges pursued his study of law at the University of Mississippi School of Law and was awarded an LLB degree in 1961 and a Juris Doctor in 1968.
Judge Bridges served in the U.S. Marines during the Korean War, attaining the rank of sergeant. He went to college on the GI Bill.
Judge Bridges held membership in a number of prestigious legal organizations including Who’s Who of American Judges, American College of Trial Judges, Mississippi Bar Foundation, Mississippi Municipal Attorneys Association, American Society of Hospital Board Associations, Mississippi Hospital Board Attorneys, and the Mississippi Continuing Judicial Education Committee.
He was a member of Crossgates Baptist Church in Brandon and was affiliated with Gideons International.
Power of the POA
November 25, 2019 § 1 Comment
It sometimes happens that a client comes bearing process with a complaint attached alleging that he has a POA (power of attorney) and is guilty of self-dealing. “But,” he explains, “look at the POA. It clearly says right here that I have ‘full authority to handle, in his exclusive discretion, all matters and things in which [the principal] may be interested, in either business or personal affairs.'” He looks at you almost confidently, but certainly hopefully.
That was an element of the litigation between the estate of Dorothea Kolf and her surviving husband, Peter. The couple had executed a pre-marital agreement that provided each would own and surrender any claim to the other’s assets that predated the marriage. Peter, however, acting under a broad-power POA, withdrew some money from Dorothea’s accounts after she became cognitively incapacitated. A chancellor ordered him to repay into the estate the funds he had not used expressly for her benefit, and Peter appealed.
In Kolf v. Authement, Ex Rel. Estate of Kolf, handed down October 22, 2019, the COA affirmed on the chancellor’s ruling that Peter had misused the POA. Here is what Judge Barnes had to say for the court on point:
¶12. Alternatively, Peter argues that he had authority under the general power of attorney (POA) to withdraw the IRA funds. As stated, Dorothea executed the POA on August 7, 2008, naming Peter as her attorney-in-fact for financial purposes. The POA granted Peter “full authority to handle, in his exclusive discretion, all matters and things [in] which [Dorothea] may be interested, either business or personal affairs.”
¶13. The issue before us on appeal is whether the chancery court erred in awarding the IRA funds to Dorothea’s estate. Because the funds were Dorothea’s separate property under the terms of the Agreement, thereby making them a future estate asset, any authority that Peter may or may not have had to withdraw those funds under the POA is irrelevant. Moreover, an agent’s authority under a POA “does not permit the attorney-in-fact to engage in undisclosed, self-dealing activities.” West v. Johnston (In re Estate of Johnson), 237 So. 3d 698, 707 (¶23) (Miss. 2017).
“It is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.” McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986). If disputed, the attorney-in-fact’s actions must be shown to be within the principal’s intent when granting the power of attorney, in the best interests and for the benefit of the principal, and in accord with the duty of good faith owed by the attorney-in-fact to the principal. Any property or interest obtained in violation of the attorney-in-fact’s fiduciary duty “thereby is voidable by, and may be set aside by the principal or his estate.” Id. In re Estate of Johnson, 237 So. 2d at 707 (¶22).
There was substantial evidence that the transfer of the IRA funds was not done with Dorothea’s “free consent.”
Unsurprisingly, the court ruled that the duty of good faith and fair dealing trumps the powers of the POA, no matter how broad and comprehensive they might be. And that’s pretty much the result that you can expect in every similar case. You can tell your client that.
Reprise: What’s in a Name … Change?
November 22, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today.
Naming Names
April 15, 2015 § 7 Comments
Requests for name changes are something every family practitioner encounters.
There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.
If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.
Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.
In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.
If you wish to change any birth fact on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, the judge will send you back to the drawing board.
Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.
Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.
Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”
§ 7 Responses to Naming Names
GAP Act: Walk-Through of a Conservatorship
November 20, 2019 § Leave a comment
Continuing with our overview of the GAP Act.
At the GAP ACT MATERIALS tab you will find some helpful material presented by Chancellor Charles Smith at the Meridian GAP Act seminar earlier this month, entitled “Conservatorship — Walk Through.”
The Sale and the Bill of Sale
November 19, 2019 § 1 Comment
Dan McIntosh, IV (Dan) transferred his extensive gun collection to his father, Dan McIntosh, III (Mac), after he faced criminal charges in federal court. Dan gave Mac a bill of sale for the property. Mac, an attorney, represented Dan and eventually succeeded in getting the young man a favorable plea deal, although under its terms he was a convicted felon.
Dan later decided he wanted his guns back. Mac and Dan’s friend explained that he could not have them in his possession under state and federal law.
Unconvinced, Dan firebombed Mac’s home and rammed it with his Lexus; when he was arrested, he had a loaded shotgun in his vehicle. He had told his mother that he was in the middle of his suicide and he “had one thing to do before [his] life [ended.” In jail, Dan hanged himself.
Dan’d mother Beverly opened his estate and sued Mac for return of the gun collection. She claimed, among other things, that there was no consideration for the transfer, and a special chancellor was assigned the case. He found that the bill of sale and transfer were proper. Beverly appealed.
In Quick, Executrix of the Estate of McIntosh v. McIntosh, decided October 22, 2019, the COA affirmed. You can read the entire opinion with its more complete recitation of facts. I thought you might find the court’s explication of the law of bill of sale and contracts useful. Here is how judge Westbrooks addressed it:
¶12. The chancellor found as a matter of law “that the April 2010, Bill of Sale from Mac to Dan was valid and that Dan became the owner of all of the items included in the Bill of Sale at that time and, further, that at the time of his demise, the assets included in the Bill of Sale were not assets of Mac’s estate.” There need not be any further iteration of his legal finding.
¶13. A “bill of sale” is defined as “an instrument for conveying title to personal property, absolutely or by way of security.” Black’s Law Dictionary (10th ed. 2014). “A transfer may be either an absolute assignment by way of gift or sale, or an assignment by way of mortgage or security only; but in either case when a written document of any sort is used to effect the transfer, the document is called technically a ‘bill of sale.’” Albert Gibson, Arthur Weldon & H. Gibson Rivington, Gibson’s Conveyancing 302 (14th ed. 1933). Mississippi has long recognized that “the acknowledgment of payment contained in the ‘bill of sale’ is merely a receipt which may be contradicted by parol evidence.” Smith v. Stevens, 299 So. 2d 690, 691 (Miss. 1974) (citing Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036 (1904)). A bill of sale is an instrument that is evidence of a contract. Historically the Mississippi Supreme Court has used the two terms interchangeably. See Mitts v. Price, 129 Miss. 554, 163-65 (1922) (illustrating the supreme court employing the terms “bill of sale” and “contract” interchangeably in its analysis to determine the reasonable performance period under the bill of sale at issue and discussing the bill of sale as a written contract for the sale of property); see also Hercules
Powder Co. v. Westmoreland, 249 Miss. 849, 164 So. 2d 471, 474 (1964) (using the phrase “bill of sale or contract” when finding that a valid contract of employment existed between co-defendants).
¶14. In order to form a valid contract, the laws of this State require the following: “(1) two or more contracting parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding contract formation.” Gandy v. Estate of Ford, 17 So. 3d 189, 193 (¶7) (Miss. Ct. App. 2009). A valid contract has to be supported by consideration. Id.
Consideration is, of course, one of the six elements required for the existence of a valid contract. The Mississippi Supreme Court has defined consideration for a promise as (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.
Marshall Durbin Food Corp., 909 So. 2d at 1273 (¶14) (citation and internal quotation marks omitted).
Where the instrument in controversy contains a statement or recital of consideration, it creates a rebuttable presumption that consideration actually existed. The general rule is that this presumption is established even by such expressions as “for value,” “for good and sufficient consideration,” “for value received” or, as in the present case, “for valuable consideration.”
Daniel v. Snowdoun Ass’n, 513 So. 2d 946, 950 (Miss. 1987) (citations omitted). “While the presumption does not preclude the defendant from putting on proof designed to show that the consideration was not actually paid, his ‘rebuttal must be made by a clear preponderance of the evidence.’” Marshall Durbin Food Corp., 909 So. 2d at 1274 (¶15) (quoting Daniel, 513 So. 2d at 950).
¶15. In Daniel, a nonprofit corporation (Snowdoun) was established in a codicil of the will of the testatrix, Elizabeth Garth, conveying the title to her childhood home to be opened as a museum. Daniel, 513 So. 2d at 948. Other bequeaths [sic] were made to the Mississippi University for Women and St. Paul’s Episcopal Church. Id. The widower sued, seeking to renounce the will, take his legal share, and have the bequests to MUW and St. Paul declared void. Id. The nonprofit corporation was not named as a party to the will contest, and its participation in settlement negotiations was not clear. Id. Regardless, a settlement was reached, leaving Snowdoun with about $100,000 as a result. Id. Daniel also executed a memorandum of understanding (MOU) in which he agreed to set up an inter vivos trust as a depository for the money. Id. Snowdoun was named the beneficiary of the trust. Id. Daniel failed to set up the trust fund, and Snowdoun sued for specific performance. Id. The MOU became the subject of litigation. Id. The nonprofit sued Daniel for specific performance. Id. In response Daniel claimed the agreement failed for lack of consideration. Id. He claimed that he only offered encouragement and appreciation, which is not consideration. Id at 949. The court was left to weigh whether the MOU was supported by consideration. Id. The case cited bedrock canons for the element of consideration in agreements: “[M]ere sentiments such as affection, love and the like, cannot in themselves furnish adequate consideration for an enforceable contract . . . considerations must come from the parties to the agreement.” Id. at 949. Further explaining that “[c]onsideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some benefit to the defendant or some detriment to the plaintiff; but in all events it must be moving from the plaintiff.” Id.
¶16. While Daniel tried to claim that Snowdoun had no inducement because their interests were aligned during the settlement that led to the MOU, Snowdoun claimed that it intervened in the negotiations because of Daniel’s encouragement. The Mississippi Supreme Court found that the record could support both and held it “will not overturn a chancellor’s finding of fact unless he is manifestly wrong.” Id. at 951.
The court went on to find various ways that the chancellor’s findings of consideration were supported by evidence, and went on to conclude that Beverly had failed to rebut the presumption of valid consideration by clear and convincing evidence.
Peril of Proper Process: Certified Mail Fails Again
November 18, 2019 § Leave a comment
Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.
Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”
As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.
On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.
Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.
On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.
In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:
¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).
¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).
¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).
[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.
¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.
¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.
¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).
¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.
¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).
¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.
[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).
Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).
It would be interesting to see what the MSSC would do with this issue.
Street Art
November 15, 2019 § 2 Comments
Street Art. The creative urge finds many avenues of expression. The range of artistic creations one can see on a walk is impressive, from posters to frescoes to carnival masks to mosaics to store signs to doo-dads. These few are from places as diverse as Russia, Meridian, Charleston MS, Amsterdam, and Las Terrazas Cuba. Many are from Freak Alley in Boise Idaho. You might be able to pinpoint which are from where.
(Click on any picture to see a larger image)
The most interesting name change I have ever witnessed was after the Saints won the Super Bowl in 2010. One day while waiting to be heard in a case, I sat through a name change in which the Chancellor changed a little boy’s middle name to Brees. His first name was already Drew, making his new name Drew Brees _____. His mother had promised him before the season started that “if the Saints win the Super Bowl,” he could change his name to Drew Brees. She made good on her promise!
Great story.
I practice in DeSoto County, and one of the issues I have seen is a Mississippi resident trying to change a Tennessee birth certificate. courts in TN will not hear the action because they parents are not TN residents. That leaves them in the position to ask a MS court to order the TN BVS to change a birth certificate. The TN BVS does not require any notice (I have called them and asked where to send notice and they told me not to. I also am licensed in TN. I have not had a problem thus far with TN recognizing the order to change the name from the MS court and changing the name on the birth certificate, but it is with a line through the old name and the corrected name noted above.
I am concerned about one that I have recently been asked to do. TN law provides that BVS will change the name based on a court order and they recognize the out of state order that changed the name, but the BVS requires that a court order must specifically order them to block and delete if the name should be completely removed. I now have a couple who what that done, and I am concerned that the MS court will refuse to order the TN BVS to take any action. It is one thing to declare a name changed. It is entirely another to order an agency of another state to make specific changes to a birth certificate. I will try to remember to update this when I see how that works out!
Wow! I need an editor to check my grammar before I hit the enter key! Sorry for the mistakes.
I have signed orders for other states — Alabama and Louisiana for sure (maybe more that I do not recall) to change BC’s. In each case the lawyers told me that they had contacted the agency in the other state and were advised to get Mississippi court order. I was dubious at first, but the lawyers tell me that it worked.
Rule 81(d)(1) says “The following actions and matters shall be triable 30 days after completion of service of process…., to-wit: ….correction of birth certificate; alteration of name….” 81(d)(3) then says, “Complaints and petitions filed in the actions and matters enumerated…shall not be taken as confessed.”
I’ve had to name-change three elderly ladies. In each case, the Department of Public Safety had refused to renew a drivers license because the name on the DL was not identical to the name on the Social Security Card. State statute requires that their first name from their birth certificate must appear as their first name on their drivers license. Each of these ladies had been called by their middle name all their lives. Each had Social Security records using [middle name][initial][recent married name]. Department of Public Safety now insists that all identification cards reflect the same name. I think it has something to do with the Patriot Act and its progeny. DPS won’t let them adopt a different “first name”. Each lady had used multiple variations and iterations of initials, names, and multiple surnames through the years. The problem presenting to the attorney practitioner is that these ladies could not renew their drivers licenses because their names were different as between social security card and drivers license.
They do not need to correct a birth certificate because there is no error in the record of their birth. Discrepancies arose much later. They could change their social security card name, but then all of their employment, and credit history, private retirement benefit, tax records, and property ownership records would be inconsistent with their id cards.
The solution is a name change. Not correction of birth certificate.
So far, I’ve had good success by reciting all of the different iterations of name used by Complainant in her lifetime. Upon presentation of proof, I ask my chancellor to make a finding that each of these names is one and the same person as the Complainant. So far, a certified copy of this Judgment has satisfied DPS, Social Security, U.S. Customs (Passports), and private investment holders. Complainant picks one of her names and is told to stick to that one.
Procedurally, there are two obstacles. First, 81d matters cannot be confessed. There must be a record. Second, 81d matters are not triable until 30 days after somebody is served with process. If Complainant names the Bureau of Vital Statistics as a party defendant, the special assistant AG assigned to BVS will answer and refuse to amend, correct, or alter the birth certificate and offer to make a “marginal notation” of the name change on their records. This procedure satisfies Rule 81 and provides a trackable history of identity changes in conformity with DPS, BVS, and the Patriot Act.
Thanks for those observations.