Beware this Custody Minefield
July 10, 2013 § 1 Comment
It’s not uncommon nowadays for grandparents to step into the parental role when the natural parents are too immature, or too drug-influenced, or in jail, or otherwise not able to care for their children.
The parties find their way into your office, and they need help. They want you to draw up some papers “to make it legal,” and to enable the grands to get the children into school and access to medical care.
Of course, your first ethical challenge is to determine who will be your client. Grandparents or natural parents? It makes a significant difference, because there are some serious issues facing the natural parents in this situation, and they need to go into the situation with their eyes wide open.
Consider:
- In Grant v. Martin, 757 So.2d 264 (Miss. 2004), the natural parents voluntarily gave the father’s parents guardianship over their children. The natural parents later divorced, and the mother remarried and stabilized her situation. When the grandparents refused to return the children to her, she filed a petition to modify custody. The chancellor denied it, finding that there had been no material change adversely affecting the children. On appeal, the MSSC stated ” … we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption …” and that the “… natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child” and that the new standard gives chancellors “… the authority to make a ‘best interest’ decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other custody cases.” Id., at 266.
- In Callahan v. Davis, 869 So.2d 434 (Miss. App. 2004), the natural parents agreed in the course of a divorce proceeding that the paternal grandparents would have sole physical custody of the child, with what they considered was protective language in the agreement to the effect that either parent could later petition the court based on material change in circumstances, ” … to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.” The mother later petitioned to change custody, which the chancellor denied based on a finding that the proof was not clear and convincing, as was required in Grant. The COA affirmed.
- In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the court refused to extend the Grant rule to a temporary order. But beware the principle that a temporary order can morph into a permanent one with the passage of time. Quadrini v. Quadrini, 964 So.2d 576 (¶17) (Miss. App. 2007). In Hill v. Mitchell, 818 So.2d 1221 (Miss. App. 2002), the grandparents acquired a “temporary emergency order” for custody of a child “pending a final hearing.” No final hearing was ever held, and after eleven years the mother filed a petition to modify custody. The chancellor denied modification and held that the mother had abandoned the child. The COA affirmed and said that the passage of time amounted to the mother’s acceptance of the custody arrangement.
- In D.M. v. D.R. 62 So.3d 920 (Miss. 2011), the court held that a mother’s signature on a consent to adoption was tantamount to abandonment, and rejected the mother’s argument that she should regain the natural parent presumption when both of the adoptive parents (grandparents of the child) died less than 10 months after the adoption was finalized. The court applied the Grant rationale in the case.
Note that the common thread in all of the above cases is that the parent or parents voluntarily relinquished custody. The Grant rule does not apply in cases in which the child is placed with DHS. Barnett v. Oathout, 883 So.2d 563 (Miss. 2004).
Before you counsel a natural parent to forfeit the advantage of the natural parent presumption, you would be wise to get an acknowledgment that the parent knows and understands exactly what is being lost.
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]
Primer on The Natural Parent Presumption
July 9, 2013 § Leave a comment
This is the first of several posts in which we are going to examine how the natural parent presumption may be lost, and how the appellate courts have construed and applied the principles of loss of the presumption.
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. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006).
This presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004):
“The father and the 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.”
The presumption is rebuttable, upon a clear showing that:
- The parent has abandoned the child;
- The conduct of the parent is so immoral as to be detrimental to the child; or
- The parent is unfit mentally or otherwise to have custody.
Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). However, “if the court finds that one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interest of the child through an on-the-record analysis of the Albright factors. In re Dissolution of the Marriage of Leverock and Hamby, 23 So.2d 424, 431 (¶ 24) (Miss. 2009).
Most recently, the chancellor in In re Custody of Brown, 66 So.2d 726 (Miss. App. 2011) ignored the natural parent presumption and awarded custody to the grandmother based on an Albright analysis. The father appealed. The court reversed and remanded the case for a determination of whether the child’s father had abandoned the natural parent presumption through desertion or other conduct that made him unfit.
In Smith v. Smith, the Court held that “the natural parent presumption can be rebutted by a clear showing that (1) the natural 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 v. Smith, 97 So. 3d 43 (¶ 10) (Miss. 2012).
[Taken from a presentation made by attorney David Bridges to the Conference of Chancery Judges in April, 2013]
Temporarily Financially Embarrassed
July 8, 2013 § Leave a comment
When I was in private practice, our firm was visited from time to time by a couple from a neighboring county who lived in the fading glimmer of bygone prosperity. They would arrive in a 20-year-old Cadillac with threadbare upholstery. The husband wore well-cut, if aged, shiny-legged suits, and the wife was attired in tailored dresses from the 50’s. They lived in an elegant, old home that had fallen into a shabby state. I understood that the old gentleman was the son of a wealthy family, but that vein of wealth had undoubtedly run lean.
The pair would visit for a while with my senior partner until the conversation lapsed into an uneasy silence, at which point the lady would profess that they were “temporarily financially embarrassed,” and could he spare them a few dollars until the first of the month. To my knowledge they never left disappointed.
In like manner, Paul Frazier became temporarily financially embarrassed when he lost his job and had to take a job paying considerably less. He petitioned the chancery court for a downward modification. The chancellor granted a reduction for a period of one year, and assessed him with a judgment for $10,000 in child support arrearage. His ex-wife, Sharon, appealed.
On appeal, Sharon argued that Paul should not have been able to modify his obligation because it was contractual, an argument that the court brushed aside. She also questioned whether the chancellor had authority to grant a temporary or time-limited reduction in child support.
Here’s what Judge Fair’s opinion in Frazier v. Frazier, handed down June 25, 2013, stated on the point for a unanimous court:
¶17. The Supreme Court of Mississippi, in Bailey v. Bailey, 724 So. 2d 335, 339 (¶12) (Miss. 1998), held that temporary reduction in child support, as occurred in this case, is not only within the power of a chancellor – it is required under appropriate circumstances. In Bailey it was held:
Where the reason for modification is temporary in nature, the trial court should order a temporary reduction in child support. See Nichols v. Tedder, 547 So. 2d 766, 781-82 (Miss. 1989). The chancellor’s order permanently reducing Sandra’s child support obligation is reversed, and this case is remanded for further findings on a reasonable temporary reduction in child support.
Id. (emphasis added).
¶18. In today’s case the chancellor determined that, based on financial disclosures of income and assets referred to but not included in the record on appeal, a “reasonable temporary reduction in child support” was appropriate, even if she did not use those exact words. She stated, in ruling from the bench, that Paul could pay the amount he had voluntarily agreed was needed to support his two children by rearranging his priorities, financial affairs, and employment. The chancellor temporarily reduced his child support for a year in order to assist him in doing so. That was not error.
Temporary modification is a nifty item to add to your tool chest, offensively or defensively. If you represent the payor, and you know your chancellor is going to frown on a downward modification, consider asking in the alternative for a temporary reduction. Likewise, if you are on the other side, and the equities clearly favor reduction, consider asking the court to make it temporary. At least until the embarrassment subsides.
Frazier is the subject of a previous post dealing with retroactive modification.
July 5, 2013 § Leave a comment
Lauderdale County Courthouse closed in observance of Independence Day.
Relief Beyond the Pleadings
July 3, 2013 § 1 Comment
How far can a chancellor go to effect complete relief between the parties when there is no pleading specifically praying for the relief granted?
That was one of the questions before the COA in the case of Stasny v. Wages, decided June 25, 2013.
Lori Stasny had filed a petition to modify child support and asking the court to order her ex, John Michael Wages, to pay college support for the parties’ daughter, Sarah. The petition was one of several filed between the parties post-divorce, in which each sought to have the other held in contempt, and included a pleading in which Stasny sought to terminate Wages’ parental rights, a pleading in which Sarah joined as a party.
In the course of the hearing, Sarah testified that she had “other priorities” that she she considered more important than her relationship with her father, and that she had refused to speak with him at her high school graduation. She added that she had not visited her father in more than two years.
The chancellor ruled that Sarah’s estrangement from her father was extreme enough to warrant cessation of his support obligation, and he took the issue under advisement, allowing Stasny time to file a brief. Wages filed a motion to conform his pleadings to the proof to add the issue of termination of support. The chancellor granted the motion. Ultimately the chancellor terminated Wages’ duty to support the child, and Stasny appealed.
The COA affirmed the chancellor’s decision that Sarah was estranged from her father to the extent that he should be relieved of the support obligation. As to the termination of child support being outside the scope of the pleadings, Judge Fair’s majority affirming opinion set out the rationale:
¶16. Stasny next argues the chancellor erroneously granted Wages relief he did not request in his response to her petition. But procedurally, the fact that Wages did not specifically raise the issue of termination of his support obligation in his response is immaterial. See Evans v. Evans, 994 So. 2d 765, 772 (¶23) (Miss. 2008) (holding chancellor’s order that directed the parents be responsible for a child’s financial obligation “without either party raising the issue in their respective pleadings is not a procedural concern”). By petitioning to cite Wages for contempt and to modify the settlement agreement to include child support, Stasny submitted the issue of Wages’s financial support of Sarah to the chancellor—and this submission “include[d] all matters touching on that subject.” Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss. 1994). Further, at the conclusion of the hearing, both Stasny and Wages moved for the pleadings to be amended to conform to the evidence presented at the hearing, which included evidence that Sarah’s actions amounted to forfeiture of her father’s financial support. So the issue of terminating support was properly before the chancellor.
¶17. Stasny also asserts the chancellor lacked authority to terminate Wages’s financial obligations towards Sarah because those obligations—in particular, the obligation to contribute to Sarah’s college trust fund—were based on a contract between Stasny and Wages. While Mississippi law does favor honoring the contractual agreements entered as part of divorce settlements and takes a “dim view” of attempts to modify them, Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997), these agreements are “quasi-contracts.” Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995) (citing Grier v. Grier, 616 So. 2d 337, 340 (Miss. 1993)). In contrast to a contract, “the chancellor always has the discretion to modify the [divorce] decree’s terms, and all such decrees are subject to the court’s approval.” Arrington v. Arrington, 80 So. 3d 160, 164 (¶14) (Miss. Ct. App. 2012) (citing Varner, 666 So. 2d at 496-97).
¶18. Stasny, at least implicitly, recognized the quasi-contractual nature of the settlement agreement. Stasny and Wages had already sought the chancellor’s approval to modify the settlement agreement once in 2008. And in her 2010 petition, it was Stasny who asked the court to modify the settlement agreement. Though Stasny had argued a material change in circumstances warranted modifying the agreement to increase Wages’s child support, the chancellor instead found a material change in circumstances—namely, the attempt to terminate Wages’s parental rights—warranted a termination of support. See Varner, 666 So. 2d at 497 (holding that, in order to modify an agreement incorporated into a divorce decree, there must be a material change in circumstances). Because we affirm the chancellor’s decision that Wages in under no obligation to pay child support or other expenses, we need not address Stasny’s final argument—that the chancellor erred by not requiring Wages produce to her his Rule 8.05 disclosure form, which he had presented to the chancellor in camera. See UCCR 8.05.
¶19. In Markofski v. Holzhauer, 799 So. 2d 162, 166-67 (¶¶21-24) (Miss. Ct. App. 2001), an ex-wife asked the court to enforce a voluntary agreement by her ex-husband to pay for his stepchild’s college expenses, an agreement that was part of their divorce settlement. The chancellor found the stepfather had no financial obligation to pay, in part because of the stepdaughter’s behavior towards her father. Id. at 167 (¶24). The chancellor “found that under the present circumstances, it would be unreasonable to require a man to pay for the college education of a former stepchild who accused him of molesting her, charges of which he was eventually acquitted.” Id. And relying on Hambrick, this court found no abuse of discretion. Markofski, 799 So. 2d at 167 (¶¶24-25) (citing Hambrick, 382 So. 2d at 477). While the facts here are not as egregious as the accusation in Markofski, the chancellor found that under the circumstances in this case—Sarah’s participation in the proceedings to terminate her father’s parental rights, coupled with her refusal to visit him—it would be unreasonable to enforce the provision in the divorce decree that her father pay into her college trust account.
¶20. Because there is evidence supporting the chancellor’s decision to terminate Wages’s financial obligations, we find no abuse of discretion and affirm.
A lot to chew on here, quasi contracts and all.
But the point is that when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence. Here are two that would appear to be particularly applicable here:
- Equity will not suffer a wrong without a remedy; and
- Equity delights to do complete justice and not by halves.
A Not-so-Separate Peace
July 2, 2013 § Leave a comment
Christopher and Tammy Clausell purchased a jointly-titled home in 2003, using a cahsier’s check for $60,000 that was derived from settlement of a personal-injury claim that Christopher had before the marriage, but that he received post-marriage.
In 2005, after Hurricane Katrina, the parties received a joint grant of $98,000, of which they devoted around $78,000 to remodelling the home.
The parties lived together in the home until 2008, when they separated, and, after Christopher filed for a divorce, he was awarded temporary occupancy of it.
In the course of the divorce, the parties entered into a consent, leaving it to the chancellor to decide the equitable distribution of their personal and real property.
In 2011, the chancellor classified the home as marital property. The judge ruled that the facts that the home was the primary marital residence for most of the ten-year marriage, and that it was jointly titled, and that the grant money was invested in it, all supported a finding that it was a marital asset. After applying the Ferguson factors, she ordered that it be sold, with the net profit divided equally between Christopher and Tammy.
Christopher appealed, taking the position that the chancellor was in error in classifying the home as marital property subject to division, since the entire purchase price was paid out of his personal-injury settlement.
In Clausell v. Clausell, decided June 25, 2013, the COA affirmed. Judge Fair, for the majority, explained:
¶9. To equitably divide property, the chancellor must: (1) classify the parties’ assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets. Hemsley [v. Hemsley], 639 So. 2d at 914; Ferguson [v. Ferguson], 639 So. 2d at 928. Here, the only dispute by either party of the chancellor’s classification of assets as marital or separate and the division of those assets is the classification and division of their jointly titled house. In Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994), our supreme court stated that all marital assets are subject to possible equitable distribution in accordance with the factors provided in Ferguson. Marital property is “any and all property acquired or accumulated during the marriage . . . and [is] subject to an equitable distribution by the chancellor.” Hemsley, 639 So. 2d at 915. Further, such marital “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside of the marriage.” Id. at 914.
¶10. Christopher mistakenly asserts that the home cannot be marital property because it was purchased with money from his personal-injury settlement from litigation filed before marriage on a cause of action that accrued to him prior to marriage. However, Christopher was married to Tammy when he received the settlement check, and he was married to Tammy when they purchased the home. Further, “nonmarital assets . . . may be converted to marital assets if they are commingled with marital assets or used for familial purposes. Such converted assets are then subject to equitable distribution.” Heigle v. Heigle, 654 So. 2d 895, 897 (Miss. 1995). “The burden is upon one claiming assets to be non-marital to demonstrate to the court their non-marital character.” A & L, Inc. v. Grantham, 747 So. 2d 832, 839 (¶23) (Miss. 1999) (citing Hemsley, 639 So. 2d at 915). “This burden goes beyond a mere demonstration that the asset was acquired prior to marriage.” Id.
¶11. Reversal is warranted “only where the failure to make sufficient findings of fact and conclusions of law constitute manifest error.” Selman v. Selman, 722 So. 2d 547, 554 (¶29) (Miss. 1998). In this case, the chancellor set out her considerations in classifying the home as marital under Hemsley and conducted a detailed analysis of all the Ferguson factors in distributing the marital estate. We cannot say that the chancellor abused her discretion in classifying the home as marital and dividing proceeds of its sale equally. Accordingly, we affirm the judgment of the chancellor.
Understand that if you represent the party seeking to keep an asset separate, you have a substantial burden that “goes beyond a mere demonstration that the asset was acquired prior to the marriage.” You will have to show how the asset retained its separate character, or how it can easily be traced out and re-separated. And your proof must be in the record. If you just dump that on the judge to do and do not make the record, you are planting potent reversible error.
My sense is that it is getting harder and harder to convince the appellate courts that an asset is in any way separate (1) if it has been used in any form or fashion for family use, or (2) if marital money was invested in it, or (3) if there is no pre-marital agreement that it be treated separately despite (1) and/or (2).
As a lawyer, you are in a position to advise clients in advance how to avoid these judicially-created traps. The downside is that, 99% of the time, you are invited to get involved long after the deed is done (no pun intended).
Chancellor Ed Roberts, R.I.P.
July 1, 2013 § 2 Comments
Chancery Judge Ed Roberts of Oxford died this morning after a brief illness.
Still No Retroactive Downward Modification of Child Support
July 1, 2013 § 1 Comment
Every now and then I hear testimony that the party wants me to extend downward modification of child support retroactively, either to the date of filing, or to the date of the event that warranted a reduction in child support.
The answer, as you probably know, is that Mississippi law has long barred retroactive downward modification in child support cases.
In the COA case of Frazier v. Frazier, handed down June 25, 2013, appellant Paul Frazier asked the appellate court to change the rule and allow retroactive reduction, although he apparently had not pled for it at the trial-court level, and he acknowledged his uphill climb on appeal. Judge Fair stated the unanimous court’s opinion:
¶19. Though he did not affirmatively seek retroactive modification of the child support that he did not pay in full, Paul asks this Court to deviate from both long-established case law and legislative mandate and grant him retroactive relief. He begins his brief on appeal by admitting:
This is a case about the retroactive modification of child support. A husband sought a change in support because he had lost his job and was making considerably less than at the time of divorce. The trial court modified the child support. However, it took well over a year to obtain the relief, and in the meantime the husband incurred heavy child support obligations he could not meet.
Despite ordering a modification, the trial court did not order a reduction in his past due child support, even though the husband . . . had timely filed and pursued the modification. In the interests of equity and public policy, the Court must fashion a remedy for good faith litigants who are forced into extreme situations like this one.
¶20. Recently, in A.M.L. v. J.W.L., 98 So. 3d 1001, 1016-17 (¶¶40-42) (Miss. 2012), the Supreme Court of Mississippi addressed that specific issue and manifested its intent to continue adherence to its prior line of cases as well as defer to the statutory provisions of Mississippi Code Annotated section 43-19-34(4) (Rev. 2009), which allows retroactive increases in child support but expressly prohibits retroactive decreases.
¶21. Paul asks us to essentially repeal that statute and overrule a long line of supreme court authority, or at the very least to carve out an exception for decisions unduly delayed through no fault of the obligor. He admits, however, that:
Over twenty years ago, the Supreme Court determined that it would not allow a retroactive modification in child support on public policy grounds. Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990). The essential point was that a judicial decree ordered the child support, and a parent should not simply ignore it without leave of court. Id. “The rationale behind this view is not difficult to divine,” the Court held, since it wished to prohibit “self help” when a parent might seek to “modify his or her obligation with impunity.” Id.
After Cumberland, the Legislature saw fit to constrain retroactive modification further. It decreed that “[a]ny order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification.” Miss. Code Ann. § 43-19-34(4) (the same law allowed an upward retroactive modification).
Paul relies upon and quotes from the four-member special concurrence penned by Justice Pierce in A.M.L., which posits allowing retroactive downward modification at least sparingly and in cases of crowded dockets and dilatory tactics causing unreasonable delay. A.M.L., 98 So. 3d at 1024-25 (¶70). In this case a crowded docket is obvious, but there is no clear evidence of dilatory tactics on Sharon’s part. On the other hand, there is some indication Paul caused a significant delay by insisting on a subpoena before providing his military records. Moreover, dilatory tactics have been held as justifying other relief, including monetary relief, even in child support cases. That remedy was suggested in Cumberland and considered and declined by the chancellor in this case.
¶22. Downward retroactive modification of child support remains prohibited by both statute and stare decisis provided by our highest court, which we must follow.
The “monetary relief” mentioned by Judge Fair refers to footnote 6, at page 847, in Cumberland, which says: “Where the non-movant engages in dilatory tactics and causes unreasonable delay, the trial court should not hesitate to exercise its inherent powers and order sanctions as may be appropriate.” In a previous footnote, as well as in the body of its opinion, the court specifically ruled out retroactive reduction.
I might add that retroactive downward modification has another inherent impediment in that each installment of child support becomes vested and a judgment in favor of the payee as and when due, and may not be reduced or modified by the trial court. See, e.g., Brand v. Brand, 482 So.2d 236, 237 (Miss. 1996).
If Paul is to change the law, he will have to look to the MSSC to get that done, which will now require him to file for rehearing before the COA, and a subsequent petition for cert to the MSSC. He may be staking his chips on that four-member minority in A.M.L. and the hope that turnover in the meanwhile may produce a more favorable result. We’ll see.
The Ultimate “To Kill a Mockingbird” Quiz
June 28, 2013 § 8 Comments
You can try your hand at this Ultimate To Kill a Mockingbird Quiz.
FYI, I lucked out and scored 15/20, which, once you get a look at the questions, you might agree is a fairly handsome score.
I’ve already disclosed here that TKM is one of my all-time favorite book/movie combinations. It had much to do with my gravitation toward the legal profession.
Just for laughs, post your quiz score as a comment. I’ll bet the scores will be all over the ball park.
