SEPARATION ANXIETY

June 10, 2013 § Leave a comment

Separate maintenance is that peculiar neverland of the marriage where one is neither quite in a marital relationship, nor quite out of a marital relationship. It’s like limbo.

We are all familiar with the old maxim that, “Separate maintenance is a judicial command to resume cohabitation or to provide support.” The focus in most separate maintenance trials is almost always on the (usually) husband’s adamant refusal to return home to the wife, and the wife’s need for financial help.

That was the focus of the chancellor in the case of Paul Jackson v. Linda Jackson. After the trial, the chancellor noted Paul’s testimony that he had no intention of returning to the marital relationship, primarily due to a subsequent relationship, and accordingly zapped Paul with $600 a month, use of a house and land, proceeds of an income-tax refund check, and “other relief.”

Paul appealed, and in the case of Jackson v. Jackson, handed down from the COA on May 28, 2013, the appellate court reversed. Paul’s complaints on appeal were several-fold, but the one that hit the bulls-eye is in the following language from Judge Carlton’s opinion:

¶11. The factual findings of the chancellor are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error. Fore v. Fore, 109 So. 3d 137, 138 (¶6) (Miss. Ct. App. 2013); see also Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss. 1977) (finding that where the wife’s course of conduct was a material factor in causing the separation at least equal to, if not great than, that of the husband, the decree of separate maintenance was erroneous); Tackett v. Tackett, 967 So. 2d 1264, 1266-67 (¶¶8-10) (Miss. Ct. App. 2007) (finding that the record supported the award of separate maintenance since evidence showed the wife’s conduct did not materially contribute to the material separation). Additionally and significant to our review of this case, the power of the court to grant the equitable relief of separate maintenance must be based on the requisites of a separation without material fault of the petitioner or requesting spouse and willful abandonment of her by the husband with refusal to support her. See Rodgers, 349 So. 2d at 541; Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993); Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008). [Emphasis added]

All three prongs of separate maintenance must be present in order to prevail for the claiming party. There must be:

  1. Separation without material fault on the part of the requesting party, and
  2. Willful abandonment by the other party, and
  3. Refusal to support.

Until all three are met, there is no entitlement to separate maintenance.

In Jackson, the COA held that the chancellor had slid past the evidence of Linda’s fault, which the COA deemed considerable as well as material, and concentrated on Paul’s own misconduct and refusal to support. The COA found that Linda had failed to prove that she was without material fault:

¶16. We acknowledge that “[s]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010). Moreover, Linda bore the burden of proof to show more than Paul’s marital misconduct. “The granting of separate maintenance is premised upon the existence of a valid marriage contract” and premised upon a showing that “there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. [Fn 4] An award of separate maintenance arises from equitable principles, and equity requires that, as the requesting spouse, Linda show no significant conduct on her part negatively impacted the marriage or contributed to the separation. Linda failed to meet the evidentiary burden required to sustain a separate-maintenance award. Linda also failed in her burden to show that Paul refused to support her, as reflected in the omissions in her Rule 8.05 financial statement. Linda failed to disclose her free residence, real-property remainder interest, business interests, and other assets. We now turn to address jurisprudence applicable to separate maintenance and to the facts of this case.

Fn 4. See also Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1989).

¶17. In Rodgers [v. Rodgers], 349 So. 2d at 541, the Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment of her with refusal to provide support to her. [Fn 5] Rodgers, 349 So. 2d at 541. The Rodgers court explained that these two requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id. The court further explained that the law applicable to separate-maintenance awards includes no requirement that the requesting spouse be blameless. Id.

Fn 5. The application of equal-protection principles allows either spouse to seek the5 equitable remedy of separate maintenance. However, since Linda is the petitioner in this case claiming the entitlement, this opinion refers to the wife as the petitioner in its analysis.

¶18. As previously discussed, our jurisprudence establishes that in order for the court to equitably award separate maintenance, the misconduct of the abandoned spouse must not have materially contributed to the separation. See id. In Rodgers, the supreme court provided guidance explaining that the requesting spouse need not be blameless or without any fault before invoking the equity required for separate maintenance. Id. The supreme court explained that where a wife’s course of conduct is a material factor in the separation at least equal to, if not greater than, that of the husband, the decree of separate maintenance is erroneous. Id. The supreme court in Rodgers found such an award erroneous since the power of the chancery court to grant separate maintenance is based on a separation without fault on the wife’s part and willful abandonment of her by the husband with a refusal by him to support her. Id.

It’s simply not enough to show that the (in this case) husband has departed and won’t come home. The burden is on the requesting party to show that she was not materially at fault, and that he is refusing support. Without all three elements, the case fails.

IF ADULT DISABLED CHILDREN ARE TO RECEIVE POST-MAJORITY SUPPORT, THE LEGISLATURE WILL HAVE TO DO IT

June 7, 2013 § 6 Comments

The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”

A wrinkle in this case was that the case was brought as a modification action in chancery court by the mother acting as conservator of the child. The chancellor ruled that a modification action was not the proper vehicle, but he went beyond that and ruled that he had no authority to impose a post-majority obligation on the father. The supreme court affirmed on both points.

This is an issue that lawyers and judges have encountered and speculated about for many years, as long as I have been practicing. For a while the speculation was that the supreme court, given just the right set of facts, would impose that duty.

Yesterday’s decision would appear to lay that speculation to rest. If there is no common-law authority to draw on, and the court holds that there is a separation-of-powers impediment, that would be conclusive, in my opinion.

Justice King dissented, taking the position that the legislature has, indeed, given the courts all the authority they need in existing legislation. You can read his dissent and form your own conclusions. Dickinson, Kitchens, and Chandler joined his dissent.

There is an interesting footnote, number 5, on the eighth page of the opinion (¶ 13). Here’s the text:

The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:

The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month . . . .

Miss. Code Ann. § 43-31-28 (Rev. 2004) (emphasis added). We have held that “this statutory liability can only be enforced in the manner provided by statute.” Wright[et al. v. Coleman], [137 Miss. 699,] 102 So. [774] at 777 [(1925)].

Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss. Code Ann. § 43-19-33(3) (Rev. 2004) (“in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).

You might have known about those two provisions. I did not.

The issue of parental support for adult disabled children has many facets and ramifications. If it is to be addressed at all, it appears that the Mississippi Legislature, with all of its institutional wisdom and foresight, will be the body to do it.

D-DAY

June 6, 2013 § 14 Comments

June 6, 1944 — D-Day — was, in my opinion, the most significant day of the twentieth century. It’s the day that combined Allied forces broke into fortress Europe and began the relentless grinding down of monster Hitler’s war-and-repression machine. It was a most climactic day among many climactic days in WWII.

It was an Allied victory, but at a great cost. Estimates vary, but it is generally accepted that the Allies lost some 10-12,000 men in the assault, against 5-9,000 for the Germans, who had the advantage early on of a strong defensive position.

It’s sobering to contemplate what the intervening 69 years would have been like had the invasion failed. The Allies may have had to sue for peace, leaving France, Czechoslovakia, Poland, Austria, and the rest of Europe under Hitler’s heel. No doubt more war would have ensued after Hitler disentangled himself from war in the Caucasus and rebuilt his strength. That he would have been able to approach world domination is not inconceivable.

The brave men who survived D-Day are dying off. Most were in their young twenties then, which means that they are in the 90’s or near to now.

Dday01

dday02

dday03

dday04

dday05

dday06

dday07

ANOTHER REVENANT CASE

June 5, 2013 § 1 Comment

The COA case of Gordon v. Gordon, decided May 21, 2013, is the latest in that ever-growing body of jurisprudence that I refer to as “Zombie Law” (hereinafter “ZL”). These are cases that appear to have been laid to their final rest by the chancellor’s ruling, often with the full agreement of both parties, only to have them rise from their grave later via post-judgment issues and appeals.

Wanda and Charles Gordon entered into a statutory consent to divorce agreeing that the one issue for adjudication by the court was, “Whether or not [Charles] is entitled to receive money from [Wanda].” The COA opinion also states that the crux of the dispute was whether Wanda had misappropriated some $46,000 of marital funds, although it is unclear from the opinion whether that issue was expressly set out in the consent.

The chancellor heard the testimony on November 8, 2004, and concluded that there was inadequate information upon which to base an adjudication regarding the contested issue. On December 17, 2004, he entered a judgment that the trial be continued to a later date for more substantial evidence on the contested issue, and he said that he would ” … go ahead and grant the divorce …, just so that [Charles and Wanda] can get that out of the way.” The judgment stated that the chancellor would retain “jurisdiction to adjudicate those matters pertaining to the division of property and support and maintenance of the one remaining minor child of the parties” [Emphasis added]. The latter language was not included in the original consent.

On January 31, 2005, Wanda filed a motion to set aside the divorce judgment. The hearing on the motion was not held until November 16, 2010. The chancellor did set aside the divorce, and, in response to Charles’s motion to reinstate it, said that he would if Charles would withdraw his claim for the $46,000, which he did, at which point the chancellor entered his judgment of divorce nunc pro tunc to December 17, 2004.    

Wanda appealed, claiming that the chancellor erred by not dividing the marital estate, including military retirement, and adjudicating child support and custody. The COA affirmed.

Here are a few points from the opinion:

  • Wanda’s argument rests heavily on the language of the consent statute, MCA 93-5-2, which states that “No divorce shall be granted … until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been adjudicated by the court …” She took the position that the chancellor had to address those statutory issues before adjudicating the divorce. The COA did not buy her argument. Notice the language of the statute, ” … raised by the pleadings …” In context, that would appear to apply to the consent, since the consent supplants the original pleadings. But be aware that the MSSC in McNeese v. McNeese, handed down April 25, 2013, held in yet another ZL case that, “The consent agreement at issue is not a motion, pleading, or a consent judgment …” Not sure how those two principles fit together, but in this case the COA did not agree with Wanda’s position.
  • The chancellor was right to set aside the divorce. The statute clearly states that no divorce may be granted until all of the contested issues have been adjudicated.
  • Wanda also claimed that the chancellor was in error in not ordering Charles to pay child support for her great-nephew, of whom she had custody per a S. Carolina judgment. Three guesses how that turned out.
  • I applaud the chancellor for refusing to go ahead and adjudicate the contested issue on scant, insufficient evidence.

If you want the chancellor to address a particular issue via consent, be sure that the statement of the contested issue clearly states what the judge is expected to decide. I am not convinced that the language, “Whether or not [Charles] is entitled to receive money from [Wanda]” does the job.

And a final lesson from this latest ZL case: It’s never over any more until it’s over, and even then it may not yet be over. The days of parties and lawyers sticking to their agreements and being held bound by them is sadly past, now merely a quaint reminder of the past like buggy whips and quill pens.

JUDGES AND ELECTIONS

June 4, 2013 § Leave a comment

Today municipal general elections are being held across Mississippi.

In the weeks (and months) leading up to this heated election in Meridian, I have been asked whether I would attend this rally or that for this candidate or that. I have been asked why I did not attend a campaign event. I have been solicited for a campaign donation. None of this was sinister, in my opinion, or intended to apply pressure.

So I thought it might be helpful for those of you out there who are involved in politics to point out some of the restrictions that limit how judges can be involved in the election process.

Judges can …

  • Vote.
  • Discuss candidates, election issues, and personal positions with friends and family.

Judges can not …

  • Act as a leader or hold an office in a political organization.
  • Make speeches for a political organization or candidate or publicly endorse a candidate for public office
  • Solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.
  • Engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.

Those principles apply in all elections, including judicial elections. There are some additional restrictions on judicial candidates.

Judges also are prohibited from commenting on matters that might come before them, which could arise from election disputes, political issues, constitutional challenges, and the like. So you might find your local judge mum when the conversation turns to some of the hot-button topics of the day.

You can read the Code of Judicial Conduct here.

SOME RULE 59 PITFALLS

June 3, 2013 § Leave a comment

Here’s the scenario … You are unhappy with the judge’s ruling in the divorce, and so is your client. The judgment was entered 7 days ago, and you and your client agree that neither a post-trial motion nor an appeal were included in the fee you charged to this point. Your client promised to bring you another few hundred dollars to file an appropriate post-trial motion. She understands that a R59 motion will toll the time for appeal, giving her additional time to marshal her assets for an appeal, if necessary. She also understands that the R59 motion must be filed within ten days of the date of the judgment. But time is running out and you haven’t heard back from her. You call opposing counsel, who is quite accommodating and suggests you just send an agreed order extending the time to file. You want 30 days? No problem. He’ll sign.

Pondering your impending dilemma, you arrive at several options:

  1. You could send that agreed judgment extending the time to file a R59 motion. You could get it to the judge at least by the tenth day, getting you in under the wire.
  2. Or, you could go ahead without your client’s participation, and without compensation, and file that R59 motion anyway.
  3. Or, you could just let the ten days go by, and file a R60 motion after then, if you get paid.
  4. Or, you could just not file a post-trial motion, and let the client pay for an appeal only.
  5. Or you could do nothing, and let the sorry so and so just rot in the sun because you weren’t paid.

Let’s look at these one by one:

  1. The agreed order. Before you do this read R59. I’ll wait. [Humming Tom Petty’s You Don’t Know What It’s Like to be Me to myself]. Done? What did you find? Is there any provision to enlarge the time? Not specifically, you say, but it’s not precluded by the language of R59. True, but read on in the Comment, where it says, “The ten-day period may not be enlarged. MRCP 6(b)(2).” R6(b)(2) states that the court, ” … may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.” So that accommodating counsel opposite may really be a Br’er Fox luring you to your doom.
  2. Go ahead on your own. This is the option I would elect. Filing the motion gives your client maximum protection. All R59 relief is on the table, and the time for appeal is extended. If your client changes her mind, you can always dismiss the motion. What about the fact that the filing was not explicitly authorized by your client? You should have no culpability if your action is in your client’s best interest. And as for pay, you can settle that later. Your client’s best interest comes first.
  3. R60 motion instead of R59. Not the best option. R60 does not stop the 30-day appeal clock from running. The scope of R60 is quite different from R59.
  4. No post-trial motion. At first blush, not an entirely unacceptable choice. A post-trial motion is not a prerequisite to an appeal in chancery. One drawback, though, is that if no R59 motion is filed the appeal deadline continues to run unabated. Another drawback is that a R59 motion may alert the judge to some flaw in his or her decision that she could correct, saving your client the considerable expense of an appeal. And, a more subtle consideration is that R59 allows you to bring something to the attention of the trial judge that you may not have objected to or made your record on at trial, and which would thereby be barred on appeal if you did not give the trial judge a chance to rule on it before your appeal.
  5. Rot in the sun. Are you serious?

The confluence of entry of a judgment, deadlines for post-trial motions, and deadline for appeal create a perilous passage fraught with shoals and cross-currents that can cause you and your client great damage. Watch the clock and chart a course that will ensure both of you the greatest possible protection.

“QUOTE UNQUOTE”

May 31, 2013 § Leave a comment

“I always think of nature as a great spectacle, somewhat resembling the opera.”  —  Bernard Le Bovier de Fontenelle

“Every year, back comes Spring, with nasty little birds yapping their fool heads off and the ground all mucked up with plants.”  —  Dorothy Parker

“That’s the problem with nature. Something’s always stinging you or oozing mucus on you. Let’s go watch tv.”  —  Bill Watterson

Plastic 06-23-12 002

ESSENTIAL INGREDIENTS OF THE CONSENT TO DIVORCE

May 30, 2013 § 4 Comments

Kenton McNeese filed a pro se appeal raising the issue, among numerous others, whether the consent for an irreconcilable differences that he and his wife, Katye, had executed and presented to the trial court for adjudication was valid or not. He took the position that it was invalid, thereby depriving the chancellor of authority to grant the divorce. His appeal raised two issues for the MSSC to address regarding validity of the consent:    

  1. Whether or not the consent was in compliance with the statute; and
  2. Whether the chancellor properly overruled Kenton’s motion to “expunge” or withdraw his consent.

In the case of McNeese v. McNeese, handed down April 25, 2013, Justice Coleman, writing for a unanimous court, summed it up about as well as it can be said:

¶13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. . . .

Miss. Code Ann. § 93-5-2(3) (Rev. 2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So. 2d 1121, 1124 (¶ 9) (Miss. 1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly [FN1] and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.

[FN1] Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss. Code Ann. § 25-33-17 (Rev. 2010).

¶15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. [Fn2] Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.

[Fn2] A consent judgment is a final judgment, more like an agreed order, which “must be approved and signed by counsel for all parties . . . before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.

¶16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev. 2004). See also McDuffie v. McDuffie, 21 So. 3d 685, 689 (¶ 7) (Miss. Ct. App. 2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jernigan v. Young, 61 So. 3d 233, 236 (¶ 14) (Miss. Ct. App. 2011). “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce. . . . What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So. 2d 353, 356 (¶ 11) (Miss. Ct. App. 1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.

It might be a good idea to look over the form you’ve been using for ID divorce consents to make sure it includes all of the required elements. Just because you’ve used it a hundred times does not mean that it complies with the statute.

Why is it important to be in line with the staturte? Well, there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid. You wouldn’t want that to cause the demise of a case you thought had been settled and done.

SERIAL MRCP 59 MOTIONS

May 29, 2013 § 1 Comment

The MSSC case McNeese v. McNeese, decided April 25, 2013, is one that addresses a dizzying variety of points. But I want to focus on the particular aspect of the post-trial motions filed by both parties.

By way of background, the case arose after Kenton and Katye McNeese entered into a consent to divorce on the sole ground of irreconcilable differences, reserving for adjudication the issues of custody, visitation, support, equitable distribution, and alimony. After the judge rendered a judgment on September 2, 1011, mostly in Katye’s favor, she timely filed an MRCP 59 motion complaining that Kenton had failed to disclose certain items in his financial disclosures. Kenton neither responded nor filed his own R59 or 60 motion.

Following a hearing on Katye’s motion, the court entered an order on October 12, 2011, ruling on Katye’s motion, followed on the same day by an amended opinion and judgment clarifying the original opinion. And that is when all proverbial hell broke loose.

Kenton fired his attorney and, on the day following entry of the amended judgment, filed pro se “Motion to Reconsider, Motion for New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings.” His motion(s) were filed 31 days after entry of the original judgment.

[Reconsideration, or Rehearing?]

The chancellor, in a display of saintly forebearance that one would be unlikely to experience with this judge, patiently allowed Kenton to present his argument and even evidence, the bulk of which was an attempt to show how the judge was wrong in his original ruling. The chancellor denied Kenton’s motion, Kenton filed a pro se appeal, and the MSSC took 23 pages to arrive at the word, “Affirmed.”

Let’s stop right there. Here are a couple of questions I have about what happened:

  • Kenton’s motion was an attack on the trial judge’s original ruling, essentially asking him to “reconsider” what he had done, or, in the parlance of the rule, for a “rehearing.” Those are R59 issues, that were required to be asserted within ten days of entry of the judgment, but he did not file his motion until 31 days after entry of the judgment. So why was he allowed to raise those points at that late date, and again on appeal? The amended judgment only clarified the original judgment, and apparently did not add anything substantive. Even if it had, however, I don’t think as a matter of law that entry of the amended judgment opened that door back for him, for the reasons I will state below.    
  • In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments. So how was Kenton able to get away with it in his case?
  • Kenton’s motion, since it was filed more than 10 days after entry of the original judgment, was properly a R60 motion. It did raise a single, valid R60 issue, namely the existence of newly-discovered evidence. The chancellor did allow him to proffer the allegedly newly-discovered evidence, which the judge ruled to be insignificant, and the MSSC affirmed. All of the other issues raised by Kenton were outside the scope of R60. I would have rejected them as untimely, and I hope I would have been affirmed.

These may appear to be quibbling points, but litigants, pro se and represented alike, are entitled to a final conclusion to their litigation travail. Untimely and insubstantial post-trial motions delay that finality and inject issues into the appeal that waste time and resources of the appellate courts to address and resolve.

WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE

May 28, 2013 § Leave a comment

I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.

I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?

The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.

That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).

I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:

¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.

If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.

« Older Entries

Newer Entries »