A Rule 54(b) Quandary
December 18, 2013 § Leave a comment
What does one do when the chancellor adds language to a ruling on a particular issue to the effect that it is certified as a final, appealable judgment, although the ruling leaves intact the lawsuit between the parties?
That is the quandary that confronted the Northeast Mental Health-Mental Retardation Commission in a case it filed against V.M. Cleveland to void a lease that it considered unreasonable. Cleveland filed a counterclaim asking for damages for breach of contract and for a declaration that the lease was enforceable. Both parties filed motions for summary judgment. The chancellor denied the Commission’s motion in toto, but granted Cleveland’s motion in part, ruling only that the lease was enforceable, and denying the remainder of the motion because there were genuine issues of material fact, etc. After he ruled on the two R56 motions, the judge added, on his own initiative, that “Insofar as the enforceability of the contract, the court certifies that this is a final decision, appealable pursuant to MRCP 54(b).”
Faced with uncertainty as to what it should do, the Commission filed both an MRAP 5 application for an interlocutory appeal, and an MRAP 3 notice of appeal. The agency frankly admitted to the court that it was unsure which was the appropriate avenue, if any, to take vis a vis an appeal.
On November 21, 2013, the MSSC denied the petition for interlocutory appeal, leaving the MRAP 3 appeal pending before the COA. The COA decided the case of Commission v. Cleveland with fairly predictable results on December 3, 2013. Judge Maxwell’s opinion for the court, lays it out:
¶12. Only final judgments may be appealed. Harris v. Waters, 40 So. 3d 657, 658 (¶3) (Miss. Ct. App. 2010). “A final, appealable[] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (emphasis added and internal quotation marks omitted).
¶13. “Rule 54(b) provides an exception to the final-judgment rule.” Harris, 40 So. 3d at 658 (¶4). Under this rule, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[.]” M.R.C.P. 54(b). “According to the official comment to Rule 54(b), the basic purpose of the rule ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.’” Harris, 40 So. 3d at 658 (¶5) (emphasis added) (quoting M.R.C.P. 54(b) cmt.).
¶14. However, for a judgment or order to be eligible for Rule 54(b) finality, “the case [must] include either multiple claims, multiple parties, or both, and . . . either one or more but fewer than all the claims [must] have been decided, or . . . all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt. The comment makes clear that “[d]espite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. And “[a] decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt. …
¶15. The chancellor’s grant of partial summary judgment did not decide a claim between the two parties. Rather, it merely decided an issue within their claims—whether the contract was enforceable. This decision resulted in the denial of summary judgment to the Commission. And the denial of summary judgment is an interlocutory order that may only be appealed by permission. Hinds Cnty. v. Perkins, 64 So. 3d 982, 984 (¶7) (Miss. 2011). The chancellor’s decision also led to the partial grant of summary judgment in favor of Cleveland. But none of Cleveland’s claims were fully resolved. The chancellor was clear in his order that, despite the contract being enforceable as a matter of law, full summary judgment could not be granted because there were still “genuine issues of material fact” concerning whether the Commission could validly take actions to rescind the contract.
¶16. Because the chancellor’s decision left a portion of Cleveland’s claim pending, the chancellor’s order did not fall within that “limited category of decisions” in which Rule 54(b) may be applied. M.R.C.P. 54(b) cmt. Thus, the Rule 54(b) certification is invalid, and the decision that is the subject of this appeal is not a final, appealable judgment. Lacking jurisdiction to address the merits of the chancellor’s decision, we dismiss the appeal.
Not having the benefit of the entire record, we are at somewhat of a disadvantage, but, if I understood the opinion correctly, the judge did finally adjudicate a key issue of Cleveland’s case, which was whether the contract was enforceable. I can understand why the chancellor thought the parties should have a shot at appellate review of that issue, since it was a major pivot point upon which both cases turned. If it were upheld, major litigation, time and expense could be avoided. If reversed, the litigation might be ended. Either appellate ruling might quite possibly have avoided a retrial in a subsequent appeal.
All that being said, I understand the COA’s position. Since most of Cleveland’s case remained unresolved, the explicit language of R54(b) was not satisfied.
I said here only last week that I wondered why all the confusion over R54(b) and how to remove the uncertainty once and for all. I don’t think this is the case that does the job.
The Cap on Division of Military Retirement — or not
December 17, 2013 § Leave a comment
Henry and Tracey Stout found themselves in a divorce proceeding after twenty-five years of marriage. After the entered into a consent, the chancellor divided the marital estate, awarding Tracey, among other things, 64.75% of Henry’s military retirement.
Henry appealed, arguing that Tracey was entitled to no more than 50% of his military retirement, based on the specific limitation of 10 USC § 1408(e), which states that: “The total amount of the disposable retired pay of a member payable under all court orders pursuant to section (c) may not exceed 50% of such disposable retired pay.”
The COA addressed Henry’s appeal in the case of Stout v. Stout, handed down December 10, 2013. Judge Roberts, for the majority, started his analysis by looking to other jurisdictions:
… This issue is a matter of first impression in Mississippi; therefore, it is prudent to consult the interpretations of this issue from other jurisdictions. In a slip opinion in Gonzalez v. Gonzalez, No. M2008-07143-COA-R3-CV, 2011 WL 221888, at *5 (Tenn. Ct. App. 2011), the Tennessee Court of Appeals stated:
It appears that the United States military does not view § 1408(e)(1) as a limit. The Defense Finance and Accounting Service observes that “the amount of a former spouse’s award is entirely a matter of state law.” DIVIDING MILITARY RETIRED PAY 6 (2006), http://www.dfas.mil/militarypay/garnishment/Speech5.pdf; see also UNIFORMED SERVICES FORMER SPOUSE’S PROTECTION ACT 2–3 (2010), http://www.redstone.army.mil/legal/data/1–usfspa.pdf (“If a state court awarded you 60% of your former spouse’s retired pay and you qualify under this statute to get direct pay, then you would collect 50% through the Finance Center and your former spouse would be responsible for providing the other 10% to you.”) DOMESTIC RELATIONS FROM A MILITARY PERSPECTIVE; FREQUENTLY ASKED QUESTIONS [http://www.cnic.navy.mil/navycni/groups/public/documents/document/cnicp_ a134503.pdf] (“The 50% maximum of DRP [disposable retired pay] is a limit on how much retired pay can be paid directly, but it is not a limit on how much a court can award.”).
Although not an exhaustive list, courts in Minnesota, Delaware, Texas, Alabama, Kansas, Washington, Maryland, and Iowa also take this view of the statute. [Footnote omitted] However, several states do consider there to be a 50% limit. [Footnote omitted] The majority view is that the statute is not an absolute cap, but rather a cap on what the government can pay directly to a spouse or former spouse. We find the majority view to be persuasive; therefore, the chancellor did not err in awarding Tracey more than 50% of Henry’s military retirement benefits. This issue is also without merit.
I find it interesting that the COA wound up dealing with this issue. If this is, as Judge Roberts found, an issue of first impression in Mississippi, aren’t those kinds of cases supposed to be the province of the MSSC?
Until the MSSC addresses it, then, we will be among the states holding that the 50% limit is a limit on what the government DFAS can be ordered to withhold, not a limit on what can be awarded by the court.
This is an important case for you to know and understand if you ever deal with military retirement, as do many of us in areas of Mississippi with military installations and military retirees.
Another aspect of this case bearing mention is the fact that the chancellor awarded a percentage of the military retirement as a part of equitable distribution, but did not place a value on the total of the benefit received. Henry charged that this was error. Judge Roberts addressed it this way:
¶17. Henry next argues that the chancellor erred in not determining a specific monetary value of his military retirement and assigning a percentage of that value to Tracey’s estate. Had the chancellor added in this value, Henry claims Tracey’s estate would have been much greater and alimony could have been avoided. Without that value, according to Henry, there is ambiguity in the equitable distribution of the marital estate. Military retirement benefits are considered personal property, and as such, are subject to equitable division in a divorce proceeding. Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994). The chancellor placed a monthly value of $1,770.53 per month, but did not determine a lump-sum value. Henry cites to no authority that a chancellor is required to determine a lump-sum value of military retirement benefits. Though not at issue in other cases, there is case law describing a chancellor solely determining the monthly value of the retirement benefits and not a lump sum. However, there is also case law that shows a chancellor actually put a lump monetary value on the retirement benefits. Neither line of cases instructs that one valuation is required or more appropriate than the other. We cannot find that the chancellor erred in not determining a lump-sum amount of the military retirement benefits awarded to Tracey. We also note that the chancellor did take into account the monthly amount Tracey would receive when she determined whether Tracey was entitled to alimony and if so, in what amount.
I wonder whether the discrepancy in case law cited by Judge Roberts is due to the fact that military retirement can be divided in equitable distribution or ordered to be paid as alimony, in the discretion of the chancellor. The cases referred to are not cited, so we do not know whether they are equitable division or alimony cases. Clearly, if paid as alimony its total valuation would be beside the point. As equitable distribution, I’m not so sure, because the value of the assets divided must be taken into account. In either case, however, as Judge Roberts pointed out, equitable division does not mean an equal division. The chancellor did an exemplary job limning out Tracey’s need for financial support post-equitable-division, so it is unlikely that placing a value on the benefits received in this case would have changed the outcome.
The Door to Equitable Distribution
December 16, 2013 § Leave a comment
It would seem to be self-evident that the door to equitable division of the marital estate is not open unless and until the trial court has a viable claim for divorce before it.
Yet, in the case of Brown v. Brown, decided by the COA on December 3, 2013, Kimberlye Brown argued that the chancellor erred when she denied Kimberlye’s prayer for equitable distribution after the chancellor had denied both parties a divorce, and, in addition, denied Kimberlye’s claim for separate maintenance. Kimberlye appealed. Judge Lee addressed the issue for the COA majority:
¶19. Kim contends that the chancellor erred in refusing to divide the marital estate. A chancellor has the authority to divide the marital estate after a divorce has been granted. Ferguson v. Ferguson, 639 So. 2d 921, 927 (Miss. 1994). In cases where only separate maintenance has been granted, however, a chancellor does not have the power to award either party a portion of the marital estate. In Daigle v. Daigle, 626 So. 2d 140, 146 (Miss. 1993), the supreme court stated that separate maintenance “is not a dissolution of a marriage and dividing of marital assets . . . .” And the court found that the chancellor erred by dividing the marital assets. Id.
¶20. Furthermore, in Thompson v. Thompson, 527 So. 2d 617, 622-23 (Miss. 1988), the court stated:
The legal duty of the husband to support his wife does not require that he convey any property to her. During cohabitation the wife has the legal right to live in the husband’s home, but he is under no legal duty to convey it to her. And after separation her legal rights are no greater than before. . . . [T]he court should not, under the guise of enforcing that contractual duty, deprive him of his lands or other specific property, where not necessary for the enforcement of that duty.
(Citations omitted).
¶21. By asking the chancellor to divide the marital assets in the absence of a divorce decree, Kim is asking for her legal rights to be greater than they were before the separation. The chancellor did not have the authority to divide the marital assets, because the claims for divorce had been denied. This issue is without merit.
Some of the toughest swivets I ever sweated out as a lawyer were the ones where I argued something I considered so elementary that I did not even bother to gather some authority to take with me, yet I discovered to my chagrin that the chancellor was blithely unaware of the law on the point. A senior chancellor once threatened to throw out my client’s contest of a modification petition filed against him because I had not filed an answer. To compound matters, the lawyer on the other side argued that an answer was absolutely required. Neither found the express language of R81 very persuasive. Ouch.
So you might want to tuck away the above language from the Brown case in that special place where you store your legal survival gear. It just might come in handy after you have successfully defeated your opponent’s claims for divorce and separate maintenance, and opposing counsel rises and says, ” … and now, your honor, about our prayer for equitable distribution …”
Add Another 54(b) Casualty
December 12, 2013 § 1 Comment
At some point (we may already be there), these will be so numerous that they will no longer be newsworthy, but there is yet another dismissed appeal for lack of a final judgment disposing of all issues, and no MRCP 54(b) certification.
The case is Estate of Norton: Jordan v. Norton, handed down by the MSSC December 5, 2013. I won’t bore you with the now-all-too-familiar details. This is a short opinion that you can read yourself in just a few minutes.
I am wondering whether these appellate misfires result from some kind of flaw in our rules, or whether the fault is in our stars, so to speak.
Is MRCP 54(b) ambiguous or unclear? It does not seem so to me, but that may be me looking through judicial-colored glasses with especially thick lenses. Is it unclear to lawyers who battle in the trenches?
Or is it that lawyers are acting out of an abundance of caution? If so, that seems like an expensive way to go, when a simple post-trial motion asking the judge for a 54(b) certification would cover one nicely.
I don’t know. Anyone have any ideas?
A Primer on Third-Party Custody
December 11, 2013 § 2 Comments
The cases on third-party custody can be confusing in their own right, but when one adds into the mix the cases where third parties acting in loco parentis also claim custody, it can become downright confusing.
The MSSC case of Davis v. Vaughn, decided November 21, 2013, includes a welcome exposition on the subject that you just might want to save for future reference. It stands for the proposition that a third party’s in loco parentis status, standing alone, is not enough to overcome the natural-parent presumption. Here is the key language from Justice Kitchen’s opinion for a unanimous court:
¶10. We first address Davis’s assertion that parties standing in loco parentis should be able to seek custody of the child without having to prove that the natural parent has relinquished his or her parental rights. The law recognizes that parents are the natural guardians of their children, and “it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 429 (Miss. 2009) (citing K.D.F. v. J.L.H., 933 So. 2d 971, 980 (Miss. 2006)). See also Miss. Code Ann. § 93-13-1 (Rev. 2013) (“The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education . . . . If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”). However, the presumption in favor of the parent may be rebutted by clear and convincing evidence that “(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Smith, 97 So. 3d at 46 (citing Vaughn II, 36 So. 3d at 1264-65 (Miss. 2010); Leverock, 23 So. 3d at 429-30; Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)). If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests. Id. (citing In re Custody of M.A.G., 859 So. 2d 1001, 1004 (Miss. 2003); Logan v. Logan, 730 So. 2d 1124, 1127 (Miss. 1998)).
¶11. A person in loco parentis is one who stands in place of a parent, having assumed the status and obligations of a parent. Favre v. Medders, 241 Miss. 75, 81, 128 So. 2d 877, 879 (Miss. 1961). “Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis.” W.R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 575 (Miss. 1969) (citing Favre, 128 So. 2d 877). In loco parentis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child “as against third persons.” Favre, 128 So. 2d at 879 (emphasis added) (citations omitted).
¶12. Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. Smith, 97 So. 3d at 46-47. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption. In other words, “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted. Id. at 46-47.
¶13. Giving preference to natural parents, even against those who have stood in their place, honors and protects the fundamental right of natural parents to rear their children. Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So. 2d 414, 417 (Miss. 1991) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944)). This concept is hardly new:
Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child.
Moore v. Christian, 56 Miss. 408 (1879). See also Prince, 321 U.S. at 166 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”) (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, (1925)). Furthermore,
[A]s a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its [natural parent], as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the [parent] is an unsuitable person to have the custody of his [or her] child; or that, however moral a [person] may be, he [or she] had abandoned his child, contributing nothing to its support, taking no interest in it, and permitting it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.
Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). In other words, by allowing one’s child to remain in another’s custody, without providing any support to or pursuing a relationship with the child, a natural parent may, over time, relinquish his or her parental rights in favor of a de facto parent. More than a century later, the Court continues to recognize these legal maxims, declaring in Smith that “grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption first is overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.” Smith, 97 So. 3d at 47-48 (Ethredge v. Yawn, 605 So. 2d 761, 764, 766 (Miss. 1992)).
¶14. Davis has cited no authority to support our overruling this line of precedent. Instead, she relies on the facts in her case, arguing that, without a change in the law, there is no “real legal benefit” to the doctrine of in loco parentis. But, this Court clearly has recognized that the doctrine protects those standing in the shoes of the natural parents from outside intrusions, and these rights are constitutionally guarded. For example, in Britt v. Allred, 199 Miss. 786, 25 So. 2d 711 (1946), this Court held that parties who had taken in and cared for an orphaned child stood in loco parentis to the infant and could not be deprived of their “parental rights” without notice and an opportunity to be heard. Id. at 789-90 (emphasis added) (citations omitted). That decision noted that this holding was founded upon the “universal rule governing due process of law,” as recognized in our state and federal constitutions. Id. See U.S. Const. amend. XIV; Miss. Const. art. 3, § 14.
¶15. Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede the best interests of the child. Parental rights, as is true of other fundamental rights, can be forfeited or taken away, and our law does recognize some means by which third parties can overcome the law’s preference of natural parents. See Smith, 97 So. 3d at 46 (listing the ways in which the natural-parent presumption may be rebutted). Consistent with longstanding legal authority, requiring Davis first to demonstrate that Vaughn had relinquished his right to parent his child, was not an undue burden. The law protects the best interests of the child by its recognition that a natural parent’s “liberty interest . . . in the care, custody, and management of their children and families,” is not an absolute right. G.Q.A. v. Harrison County Dep’t of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
This is the latest iteration of the Vaughn case. You can read an earlier post that mentions it here.
The Nexus Between Separate Maintenance and Desertion
December 10, 2013 § Leave a comment
Brenda Reeves left her husband Howard in February, 2008, and, soon after, Howard sued her for separate maintenance. Brenda responded with a motion to dismiss, and, after a hearing, the chancellor found that Howard’s abuse of alcohol, and his physical and emotional abuse of Brenda, were the proximate causes of her departure. He dismissed Howard’s complaint for separate maintenance following the trial, in February, 2010.
In March, 2010, Howard filed a Complaint for Divorce on the ground of desertion, which he shortly after dismissed.
In April, 2011, Howard filed another Complaint for Divorce on the ground of desertion. Brenda again filed a motion to dismiss, which the court denied. At trial in February, 2012, Brenda argued that Howard’s complaint should be dismissed because, under Mississippi law, if the plaintiff had previously filed an unsuccessful separate maintenance action, he must prove that he made a good-faith offer to reconcile with his spouse at least one year prior to filing the divorce complaint. The chancellor ruled that Howard had not submitted adequate proof to meet his burden, and he dismissed Howard’s complaint. Not at all happy with the outcome, Howard appealed.
In the COA case of Reeves v. Reeves, decided December 3, 2013, the COA affirmed the trial judge’s ruling. This is case law of which you need to be aware. Here is how the COA, by Judge Ishee for a unanimous court, addressed it:
¶8. Howard asserts the chancery court erred in finding that he failed to meet the one-year requirement for seeking a divorce on the ground of desertion. As such, Howard also asserts that the chancery court erred in failing to grant him a desertion-based divorce. The supreme court has addressed divorce cases such as the instant case wherein a separate maintenance action has been adjudicated prior to the filing for divorce on the ground of desertion. See Day v. Day, 501 So. 2d 353, 354 (Miss. 1987). In Day, the supreme court summarized desertion as follows:
If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.
Id. at 356 (citation omitted).
¶9. However, the determination of whether desertion exists is viewed differently in light of an adjudicated separate-maintenance order. Id. (citation omitted). The supreme court noted that if a plaintiff seeking divorce can show that, “since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, [then] the defendant is now a deserter and the plaintiff is entitled to a divorce for desertion.” Id. (citation omitted). The proof must show that the plaintiff was “honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.” Id. at 357 (quoting Rylee v. Rylee, 142 Miss. 832, 840-14, 108 So. 161, 163 (1926)).
¶10. The evidence before us fails to prove that Howard made a good-faith reconciliation offer at least one year prior to April 11, 2011, as required by Day and Rylee. Howard testified at trial that he called Brenda once a month asking to reconcile. Brenda disputes this fact and further asserts that Howard’s occasional generic request to reconcile did not include a promise that he would seek rehabilitation for his alcohol abuse, nor did his requests include repentance for his prior abusive actions toward Brenda or promises that the abuse would not occur again. The evidence shows that the only good-faith reconciliation offer acknowledged by both parties was made on or about June 7, 2011 — approximately two months after Howard filed his complaint for divorce on the ground of desertion.
¶11. This was reflected in the chancellor’s following comments made during his ruling:
It seems to me that after a separate[-]maintenance proceeding, in order for the time to start ticking under Day, it is incumbent upon Mr. Reeves to make a good[-]faith offer. . . . I don’t have proof that I think rises to a preponderance of the evidence to show that Mr. Reeves made an offer for Mrs. Reeves to return home, satisfying whatever concerns she may have had, that would have started the one year running as contemplated by Day. I’m going to decline to talk about the reasonableness or unreasonableness of these post[-]filing offers that have transpired between Mr. and Mrs. Reeves . . . .
We agree with the chancellor. The law is clear that, under these circumstances, Howard was required to make a good-faith reconciliation offer at least one year prior to filing a complaint for divorce on the ground of desertion. The evidence simply does not show that he did so. As such, the chancellor did not err in his determination that Howard failed to meet the one year requirement at issue. This issue is dispositive of Howard’s second claim on appeal that the chancery court erred in failing to grant him a divorce on the ground of desertion. These issues are meritless.
Two observations:
- Notice in ¶10 that the COA finds from the record that Howard had neither (1) undergone rehabilitation for his alcohol abuse, nor (2) repented for his prior conduct. This is language that you can use when you have a separate maintenance case in which the payer claims to have had his offers to reconcile rejected. It seems that what the COA is saying is that the offeror must prove measures to reform, and must make amends with the offended party. “Generic” offers to return home won’t cut it.
- Cases of this type were more common before irreconcilable differences divorces by consent became available. Every now and again one runs into a pleading and procedural scenario like the Reeves case presented, and you have to be prepared to meet it. Remember that it takes more to prove desertion than mere separation without fault for a year or more. Since a good-faith offer of reconciliation within the one-year period will stop its running, the offended party must prove that she or he would have been willing to reconcile within that first year if a bona fide offer to do so had been made, but none was made.
Next Step for Adult Disabled Children?
December 9, 2013 § 3 Comments
NOTE … If you have any interest at all in this issue, you should read Paul Snow’s comment to this post.
I posted here about the MSSC case, Hays v. Alexander, which I thought may have laid to rest the issue of a court-created duty of support for adult disabled children.
Well, hold on while I slam on the brakes, and I hope I’m not giving anybody whiplash.
This appeared on the MSSC decisions web page last Thursday:
EN BANC
2012-CA-01085-SCT
John W. Ravenstein v. Elisha Ravenstein (Hawkins)
- ; Madison Chancery Court; LC Case #: 96-350-B; Ruling Date: 04/18/2012; Ruling Judge: Cynthia Brewer; Disposition: On the Court’s own motion, the parties are directed to file the original and nine copies of supplemental briefs, and to serve a copy of the briefs on the Office of the Attorney General, addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support, due on the following schedule: within 30 days of the entry of this order John shall file his supplemental brief which shall not exceed 25 pages; within 30 days of the service of John’s supplemental brief, Elisha shall file her supplemental brief which shall not exceed 25 pages; and within 14 days of the service of Elisha’s supplemental brief, John may file a supplemental reply brief which shall not exceed 10 pages. The Clerk of this Court shall serve a copy of this order on the attorneys of record, as well as on the Office of the Attorney General. If the Attorney General chooses to file a brief, it shall be due within 30 days of the service of Elisha’s supplemental brief and shall not exceed 25 pages. Lamar, J., Disagrees. Order entered.
It appears this particular case is a matter of statutory interpretation, not a request for the court to create a remedy. It’s an interesting possible development.
Stay tuned.
“Quote Unquote”
December 6, 2013 § Leave a comment
“The trouble with many married people is that they are trying to get more out of marriage than there is in it.” — Elbert Hubbard
“The sign of a good marriage is that everything is debatable and challenged; nothing is turned into law or policy. The rules, if any, are known only to the two players, who seek no public trophies.” — Carolyn G. Heilbrun
“Perhaps that is what love is: the momentary or prolonged refusal to think of another person in terms of power.” — Phyllis Rose
Non-DNA Parenthood
December 5, 2013 § 2 Comments
Disestablishing parentage has been a statutory procedure since 2011, when the legislature adopted MCA 93-9-10. I posted here an annotated version of the provision that set out my opinion of how to plead and prove it.
The MSSC at last was presented with an opportunity to address its application in the case of Jones v. Mallett, et al., handed down November 14, 2013.
Terence Jones was involved in a romantic relationship with Annette Mallett in 2000. Mallett gave birth to a child on August 22 of that year. Mallett says that she told Jones he was not the father when she learned of the pregnancy. Jones claims that he did not learn that he was not the father until after signing the paternity agreement and birth certificate application, or as much as four months later.
Jones was listed as the father on the birth certificate, and he signed it. In October, 2000, he and DHS entered into a “Stipulated Agreement of Support and Admission of Paternity,” which was approved by order of the chancery court.
In December, 2010, Jones had a DNA test performed, which excluded him as the father. He filed an action in chancery court to disestablish paternity, rather than a MRCP 60(b)(5) or (6) motion. The chancellor eventually dismissed Terence’s pleading, based on MCA 93-9-10. Terence appealed.
The supreme court brushed aside Terence’s argument that the agreement was the result of a “material mistake of fact” under MCA 93-9-10(3)(b), finding that “The facts as presented do not establish sufficient circumstances for the application of subsection (b).” [ ¶7 ]
Terence also argued that subsections (c) and (d) must be read together, mandating a finding that he meets the criteria for disestablishment, but the court rejected that position, pointing out that (c) relates to stipulations of paternity, and (d) relates to stipulations of support, which are two different things.
That last point is critical to the case because (c) says that the court may not set aside an agreement of paternity that has been approved by the court (as this one had been). Subsection (d), on the other hand allows disestablishment of parentage if he signed an agreement of support without knowledge that he is not the father of the child. That without knowledge language is significantly absent from (c). Since Terence had signed both, he had no wiggle room.
To me, the MSSC is sending the signal via this opinion that the statute will be strictly applied.
No doubt the considerable passage of time from the signing of the paternity agreement to DNA testing and the filing of suit and eventual court appearance figured into the unhappy result for Terence.
The Better Chancery Practice Blog 