WHEN FINANCIAL PROOF IS JUDGE ABUSE
May 22, 2013 § 10 Comments
The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.
Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.
No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.
In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:
¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.
The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.
I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.
Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.
MIXED ATTORNEY’S FEES
May 21, 2013 § 1 Comment
The COA decision in Tidmore v. Tidmore, decided May 14, 2013, underscores the mixed attorney’s fee, a fairly common phenomenon in chancery court. It happens when one brings an action combining two or more different causes of action. It could be a contempt and modification, or a divorce with an allegation of contempt of the temporary order, or a suit seeking injunctive relief and sanctions.
In reversing the chancellor’s award of attorney’s fees assessed against Nicole Tidmore in favor of her ex-husband, Michael, the COA, by Judge Irving, said this:
¶10. Nicole argues that the chancellor erred in awarding attorney’s fees to Michael since some of the attorney’s fees were incurred in pursuing a modification of custody. We note that “attorney’s fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So. 2d 834, 841 (¶32) (Miss. Ct. App. 2003). However, it is well established that “[a] chancellor may award attorney’s fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So. 2d 1033, 1040 (¶25) (Miss. Ct. App. 2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So. 3d 65, 73 (¶26) (Miss. Ct. App. 2009).
¶11. Additionally, Mississippi Code Annotated section 93-5-23 (Supp. 2012) requires the chancellor to impose attorney’s fees for unsubstantiated allegations of abuse:
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.
(Emphasis added).
¶12. In this case, the chancellor ordered Nicole to pay Michael’s attorney’s fees and the GAL fees as follows:
With regard to [Michael’s] claims for attorney’s fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt . . . . As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.
After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney’s fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]
¶13. We cannot say that the chancellor abused his discretion in awarding attorney’s fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole’s allegations of abuse against Michael were unsubstantiated. The chancellor’s order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole’s contemptuous conduct.
¶14. While Michael is certainly entitled to an award of attorney’s fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney’s bill. Although there may be difficulty in allocating the attorney’s fees, the chancellor should nonetheless make that determination. Therefore, the amount of the award of attorney’s fees is reversed and this issue is remanded to the chancellor for a determination of the amount of attorney’s fees that should be awarded to Michael for the contempt proceedings and defense against the baseless abuse allegations.
So another attorney’s fee award bites the dust for lack of an essential finding. It’s not clear from the opinion whether the chancellor had all the information he needed to make the allocation of fees as lucid as it could or should have been.
Remember to give the judge all the essential information he or she needs to make a decision that would stand up if there is an appeal. All the judge needed here was time records or testimony to show how the hours devoted to the case by the attorney were spent as to each issue. There is no one who knows that better than the attorney who did the work. Naturally, there will be some judgment calls as to how to categorize various activities, but that is what cross examination is for, isn’t it?
While we’re on the issue of attorney’s fees, the COA touched on Michael’s request for an appellate attorney’s fee:
¶15. Michael also asks this court to order Nicole to pay his attorney’s fees on appeal. “When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded [by the chancellor].” Carroll v. Carroll, 98 So. 3d 476, 483 (¶26) (Miss. Ct. App. 2012) (citing Lauro v. Lauro, 924 So. 2d 584, 592 (¶33) (Miss. Ct. App. 2006)). However, because Nicole prevails on this issue, Michael is not entitled to attorney’s fees on appeal.
MAKING SCHOOL GUARDIANSHIPS LESS BURDENSOME
May 20, 2013 § Leave a comment
Guardianships of the person are a pretty common phenomenon in these parts, as they are, I am sure, wherever you might be. I call them “school guadianships,” because that’s what they traditionally were used for — to get children into particular schools, ordinarily via grandparents — within the tolerance of the school district involved.
As it stands now, MCA 93-13-38 requires a guardianship of the person to observe all of the same formalities as an estate, including notice to creditors, probate of claims, accountings, and so on, even though there is no estate whatsoever.
That’s going to change, effective July 1, 2013. HB 725, sheparded through by Rep. Greg Snowden, changed the statute to provide that:
“The requirements in a guardianship of the person are modified to the extent that notice to creditors is not required, reports will be made only as often as the court requires, and the guardianship may be closed without the need for any accounting unless otherwise determined by the court. Any assets that are received shall be reported immediately and at that point the guardianship shall be deemed to be a guardianship of the personand estate and all requirements for guardianship of the person and estate shall be followed.”
This is a welcome clarification and simplification. In this district we have been requiring reports every other year. The report is a simple, two-sentence statement that: (1) the guardianship is still necessary; and (2) no assets have come into the guardianship. We have found that eventually the ward reaches majority, and the lawyer files a report asking to close as no longer necessary. When I took office I found guardianships of the person that were as much as 25 years old that had never been closed. There’s no good reason for that. I asked Rep. Snowden to address this, and he did an effective job.
We have significant number of these, some of which should probably be converted to Special General Guardianships after those become effective July 1, 2013. Despite my “school guardianship” label, most nowadays involve grandparents taking grandchildren to raise, and needing a guardianship to obtain medical care, enroll in school, etc.
WHAT IS THE FUTURE FOR LAWYERS?
May 17, 2013 § 4 Comments
If you haven’t noticed, the legal profession is at a pivot-point. The big firms have been downsizing for years, finding it more and more difficult to payroll armies of lawyers as damage caps and other litigation-discouraging measures have eroded the caseloads of both defense and plaintiffs’ firms. Corporate clients in a bad economy are relying more and more on in-house counsel and alternate dispute resolution as ways to cut legal costs.
Here in Mayberry, the everyday folk simply don’t have the money to pay big fees when a divorce or custody war looms. They look for cheaper ways, and the internet beckons with the alluring promise of bright success via fill-in-the-blank forms.
Against this backdrop, law school grads are finding more and more that there simply are no jobs. Those student loan repayments loom large as unanswered resumes and rejections pile up.
Richard Susskind, a UK lawyer who has studied the British and American legal systems, has been probing these and other developments to discern the future of the law and the legal profession as society moves inexorably deeper into the technological age. In his book, The End of Lawyers?, he raised the question whether lawyers had not become an anachronism, to be replaced by legal technicians handling routine legal matters, a handful of litigation specialists doing courtroom work, and platoons of document-analysis specialists, financial advisors, legal counselors, and others performing at greatly reduced cost the components of what lawyers do now for $300-$500 an hour. His point is that delivery of legal services will yield to the forces of economics and technology until it offers cheaper, more efficient ways to serve the public.
Susskind’s latest book, Tomorrow’s Lawyers: An Introduction to Your future, condenses all of the foregoing into a concise, quick read, readily accessible to any busy practitioner. The pocket-size book is only 164 pages of text, but it is crammed with provocative ideas. Susskind not only talks about the forces that are reshaping law and the practice, but also how they impact the courts and delivery of legal services.
This is a brilliant book. I commend it to all lawyers and judges, particularly those who will be involved in the legal system over the next 15-20 years. The forces of change that Susskind highlights will be either a sweeping tide of change or a sweeping tide that carries many away. We can ride it and adapt to it, or we can drown in it. We get to choose.
In my opinion, many of the ways we do business in our courts are straight from the nineteenth century. There have been some intrusions of technology, but for the most part Abe Lincoln and his contemporaries would likely find themselves right at home in our courts. We should not be afraid to examine the ways we plead, offer proof, take testimony and otherwise carry out due process in trials and hearings with a view toward streamlining the processes, making them less costly, and trimming months — if not years — off them.
I encourage you to read Mr. Susskind’s book and give this some thought. It’s your future.
ATTORNEY’S FEES AND ABILITY TO PAY POST-DIVORCE
May 16, 2013 § 1 Comment
It’s a well-settled principle of Mississippi law that a prerequisite to an award of attorney’s fees in almost all non-contempt cases is proof that the claiming party does not have the ability to pay his or her own attorney’s fees. It’s something we’ve posted about here before.
What about where the spouse claiming an award of attorney’s fees has a present or pre-existing inability to pay, but the equitable distribution award makes adequate provision, leaving no discrepancy?
The COA addressed that very question in Jones v. Jones, rendered April 30, 2013. In reversing the chancellor’s award of attorney’s fees and expert-witness expenses, the COA, per Judge Maxwell, stated:
¶37. We also reverse the award of $18,250 for attorney’s fees and expert-witness expenses. “The question of attorney’s fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court.” Watson v. Watson, 724 So. 2d 350, 356-57 (¶29) (Miss. 1998) (quoting Ferguson, 639 So. 2d at 937). But when “a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id.
¶38. In Watson, though “reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney[’s] fees,” the supreme court reversed and rendered an award of attorney’s fees because, “with respect to the financial position of the parties after the divorce decree, it [was] evident that [the wife was] financially able to pay for her own attorney’s fees.” Id. at 357 (¶30) (emphasis added); see also Pacheco v. Pacheco, 770 So. 2d 1007, 1012-13 (¶¶26-28) (Miss. Ct. App. 2000) (affirming denial of attorney’s fees because wife’s property award enabled her to pay her attorney’s fees). Here, in finding Jane unable to pay, the chancellor did not consider Jane’s financial position in light of the divorce decree and property division. Jane was awarded almost two hundred thousand dollars in cash, secured by a lien on John’s real property and businesses, a home in Oxford free and clear of any liens, and dividend-paying bank stock, as well as multiple retirement accounts. As in Watson, under the circumstances, we find the award of attorney’s fees and expert-witness expenses to be an abuse of discretion. We reverse and render this portion of the judgment.
As I have said here before, one would think that attorneys would be super-zealous in making an airtight record on attorneys fees, but in my experience the proof is quite often slap-dash and incomplete.
If you want to make your award of attorneys fees bullet-proof, make sure that there is proof in the record to support a finding by the chancellor that, even with the equitable distribution, your client has an inability to pay. Is the equitable division readily liquidable, or is the bulk of it tied up in equity? Will liquidation to pay attorney fees have adverse tax consequences, as with an IRA? Will payment of attorney fees use up most, or all, of your client’s cash? Will it take months or even years to collect all of the equitable distribution? All of these are factors that the judge will consider if you make sure to put supporting proof in the record. With that kind of proof in this case, Jane might have had at least a partial, viable claim for attorney fees that would have survived on appeal.
THE STRENGTH OF THE NATURAL PARENT PRESUMPTION
May 15, 2013 § Leave a comment
Concetter Davis gave birth to a daughter, Sha’Nyla, and in 2008, James Wilson was adjudicated to be the father. Concetter was awarded custody, and James was granted visitation.
When Concetter died in July, 2011, James filed a pleading seeking to “modify” custody, based on the mother’s death. Concetter’s mother, however, resisted, filing pleadings with the court seeking to intervene and be appointed guardian of the child.
The trial proceeded as a modification, not as an original custody determination. The chancellor found that Concetter’s death was a material change in circumstances, and then found, based on an Albright analysis, that it was in the child’s best interest to remain with the grandmother. James appealed.
The COA, in Wilson v. Davis, handed down April 30, 2013, reversed. The court first pointed out that this was not a modification case, since the original custody determination was between the two natural parents, one of whom was dead. Instead, this was an initial child-custody determination between a natural parent and a third-party. The court said, beginning at ¶ 8:
… [I]n a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Lucas v. Hendrix, 92 So. 3d 699, 705-06 (¶17) (Miss. Ct. App. 2012) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)). This is because “[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008).
¶9. The natural-parent presumption is rebuttable—but only “by a clear showing 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.” In re Smith, 97 So. 3d 43, 46 (¶9) (Miss. 2012) (citations omitted). Only after the presumption is rebutted is the grandparent on equal footing with the parent, permitting the chancellor to apply Albright to determine whether it is in the best interest of the child for the grandparent, versus the parent, to have custody. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶24) (Miss. 2009) (citations omitted).
Only after the presumption is rebutted by showing one of the four bases can the court place a third party on an equal ground with the parent and apply the Albright factors.
To hammer home the point, Judge Carlton added a specially concurring opinion including the thought that, “We must be mindful of the constitutional protection of parental rights against deprivation by third parties.”
BRIGHT LINE? WHAT BRIGHT LINE?
May 14, 2013 § 2 Comments
The line of demarcation — also referred to in the cases and in legal circles as “the valuation date” — is an important concept in divorce law. It’s something we’ve addressed here in prior posts.
Under the Ferguson case, the trial court must first identify which assets are marital, then value them, and then divide them equitably. The date that the court picks to establish the values of marital assets is crucial, since appreciation and depreciation mean that the value on one particular date may be sugnificantly different from that on another date.
Some lawyers argue that there is a “bright line” rule that the entry of a temporary order in a divorce or separate maintenance case cuts off all further accumulation of marital interests, and, indeed, some case law would seem to indicate that.
But the MSSC, in the case of Collins v. Collins, handed down May 9, 2013, makes it clear that there is no bright line rule. Here’s what Justice Coleman’s opinion says on the point:
[¶9] … The law in Mississippi is that the date on which assets cease to be marital and become separate assets – what we refer to herein as the point of demarcation – can be “either the date of separation (at the earliest) or the date of divorce (at the latest).” Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶ 27) (Miss. 2009).
¶10. In Selman v. Selman, 722 So. 2d 547 (Miss. 1998), the wife had a retirement fund, and the chancellor awarded the husband half its value even though the fund did not begin to accrue until after the husband had vacated the marital home. Id. at 553 (¶ 22). When including the fund in the marital assets, “the chancellor stated only that ‘[t]he law says that until they are divorced, everything is on the table.’” Id. Applying the well-settled manifest error standard of review, id. at 551 (¶ 12), the Selman Court reversed the chancellor’s ruling and wrote, “while the marriage had not legally terminated, the relationship out of which equitable distribution arises had ended some months earlier.” Id. at 553 (¶ 25).
¶11. A temporary order may [emphasis in original] be considered by the chancellor to be a line of demarcation between marital and separate property, Cuccia v. Cuccia, 90 So. 3d 1228, 1233 (¶ 8) (Miss. 2012); see also Wheat v. Wheat, 37 So. 3d 632, 637-38 (¶¶ 16-18) (Miss. 2010) (recognizing, in dicta, that a temporary support order can indicate the demarcation point), but we have never held that it must. However, in Pittman v. Pittman, 791 So. 2d 857 (Miss. Ct. App. 2001), the Mississippi Court of Appeals held, “[T]he temporary support order serves the same purposes as a separate maintenance order and that property accumulated thereafter is separate property.” Id. at 864 (¶ 19). In so writing, the Pittman Court created the impression that Mississippi now has established a rule that temporary orders always and in every case provide the mark of demarcation. Temporary support orders vary. They may include issues such as which spouse controls the marital home, automobiles, and bank accounts, or they may simply, as in the case sub judice, provide only for temporary custody and support of a minor child. Because of the degree of variance in temporary orders and the particularities of every marital dissolution, we reaffirm our holding in Lowrey and hold that it is necessary that a chancellor maintain discretion to decide in each instance whether a temporary order is the proper line of demarcation. To the extent that the Pittman opinion can be read to create a rule that a temporary support order necessarily and always indicates the point of demarcation, we overrule it.
¶12. In the case sub judice, the chancellor did not explicitly state what date she chose as the date of demarcation, but from the substance of the opinion, it is clear she chose the date of the divorce. In their briefs, the parties accept that the chancellor used the date of the divorce as the point of demarcation. The temporary support order in the instant case dealt only with child custody and temporary child support. It did not go so far toward separating the parties’ several jointly-held assets that we would hold the chancellor abused her discretion in not finding it to be the point of demarcation.
¶13. However, the Cuccia Court noted that the chancellor must set out the specific date used as the line of demarcation and remanded the case partly for the chancellor’s failure to do so. Cuccia, 90 So. 3d at 1233 (¶ 11). The chancellor did not do so here, but, as noted above, the parties do not dispute the issue. We take the instant opportunity to write that had the issue been disputed, or had the chancellor’s order been ambiguous as to the demarcation date used, we would have remanded the case as did the Cuccio [sic] Court. We reiterate here that chancellors should indicate in the record what date they choose for the point of demarcation and why they choose it.
That should settle the debate once and for all that the demarcation date is at the discretion of the chancellor, who must always identify the date chosen and explain why that particular date was selected.
The downside to this is that when your client asks you about whether it would be wise to acquire any new assets between separation and the date of the divorce, your answer now will be an unqualified, “I don’t have any idea.”
As a trial practice matter, I seldom hear any evidence or argument as to what the valuation date should be. If you have a case where one valuation date is advantageous to your client as opposed to another, you should be zealous about informing the judge what date should be selected, and why it should be selected. For instance, if your client acquired a home after the separation, and has accumulated wealth after the separation, you want a valuation date near that separation date, not at the date of the divorce. If you don’t make that clear in the record, the judge might choose a date that’s not so nifty for your client, and you’ll have to ask the COA to fix it.
CATES v. SWAIN CONCLUDED
May 13, 2013 § Leave a comment
I posted here and here about the saga of Cates v. Swain, the COA decision that essentially denied cohabitants any equitable relief to recover assets invested in the relationship. You can read the fact outline in that first prior post.
At trial the chancellor had rejected Mona Cates’ agrument that she was entitled to imposition of either a resulting or constructive trust, but granted her relief on the theory of unjust enrichment.
On appeal, the COA reversed, applying the rationales in Davis v. Davis, 643 So.2d 931 (Miss. 1994) and Estate of Alexander v. Alexander, 445 So.2d 836 (Miss. 1984), to reach the conclusion that equitable remedies are not available to unmarried parties who acquire assets titled in only one party’s name through the contributions of both. The court agreed with the chancellor that neither equitable trust should have been imposed, but disagreed that unjust enrichment could be applied.
On May 2, 2013, the MSSC reversed the COA decision and affirmed the chancellor on the theory of unjust enrichment. The court distinguished the cases that had been relied upon by the COA. The court did modify the amount awarded by the chancellor. Justice Dickinson, concurring in part and dissenting in part, would have remanded the case to the chancellor for further evidence on what would have been an equitable determination of what each party should receive, based on appreciation of the investments over time.
In my opinion, this decision clarifies the state of the law in an important area. Unmarried relationships are a fact in Mississippi, and there has to be a mechanism for people to recover money or property that in good conscience and justice should not be retained by another.
There is, of course, the danger that the doctrine will be overapplied and stretched to the breaking point. As the court’s opinion stated at ¶ 19, quoting an Iowa case, ” … [T]he doctrine of unjust enrichment is not ‘a roving mandate [for a court] to sort through terminated relationships in an attempt to nicely judge and balance the respective contributions of the parties.'” Applied carefully and judiciously, however, as the chancellor did at trial in this case, it’s a useful tool in an appropriate case, and it’s no longer precluded in our jurisprudence.
“QUOTE UNQUOTE”
May 10, 2013 § Leave a comment
“To handle yourself, use your head; to handle others, use your heart.” — Eleanor Roosevelt
“My parents had only one argument in forty-five years. It lasted forty-three years.” — Cathy Ladman
“And they lived happily (aside from a few normal disagreements, misunderstandings, pouts, silent treatments, and unexpected calamities) ever after.” — Jean Ferris
PROCESS IN MEXICO
May 9, 2013 § 3 Comments
Attorney Joy Harkness of Legal Services in Meridian posted a comment to a post yesterday that raised an intriguing question — one that you might just bump into in your own practice, particularly with the numbers of migrant workers in our state.
Here’s the query:
“I am looking for assistance in serving process on a resident of Mexico. It is my understanding that process by publication is not valid under the Hague Service Convention if the address if the defendant is known. It is also my understanding that the summons has to be translated into Spanish. I am looking both for advice on the procedure and someone to provide the translation.”
Has anyone else run into this, or has anyone researched this?
I thought this should be in a post, where more folks might see it, rather than in a comment.
We have a notable number of divorces (almost all I.D. divorces) involving Latin-Americans, mostly Mexicans, in this district. They are as routine as any other I.D. divorces, but there are some with problems. I denied one father’s request for visitation because he could not provide a legitimate address, and claimed to have lost his passport. When I asked to see his DL, he produced a fake with a fake address. Since two witnesses had testified that he had said he wanted to take the children back to Mexico with him, I thought that he should be better documented before we did that.
The Better Chancery Practice Blog 