YOU MIGHT WANT TO RECONSIDER YOUR MRCP 59 MOTIONS
February 7, 2013 § 1 Comment
Judge Griffis tells of a time that he filed a “Motion to Reconsider” in federal court after a judgment that he took issue with had been entered. Judge Lee, in his ruling, devoted the first page or two to pointing out that there is no such motion.
When I heard the story, I took exception and pointed out that even under our pre-MRCP practice there was a motion to reconsider, and that the MRCP even continues our pre-rules practice. I added that lawyers even today file motions to “reconsider.”
Well, I was wrong. Sort of.
MRCP 59 says that a new trial may be granted ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”
That’s rehearing, not reconsideration.
To discover the reasons for which rehearings were granted in pre-rules suits in equity, I consulted Griffith, Mississippi Chancery Practice, 2d Ed., 1950, which is the bible of pre-rules practice. Under that ancient practice, all the business of the court was conducted during the terms. All judgments became final on the last day of the term, unless the judge entered an order during the term that set a matter for hearing on a day outside the term (“in vacation”), and orders and decrees could not be altered or amended by the chancellor after the term ended except for some very limited circumstances.
During the term, all decrees and orders issued by the chancellor, even if filed, were considered to be “in the bosom of the court,” and could be changed, altered, withdrawn or vacated by the court at any time up to the close of the term, either on its own motion, or on motion of any party to the suit. The request to the court during the term was a “motion for rehearing,” and some of the bases mentioned by Griffith are: on the court’s on motion to vacate or modify its decree; reargument to point out an overlooked point of law; urging a different result based on something in evidence that the court failed to mention; and newly-discovered evidence (now an MRCP 60 matter).
So “the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi” include not merely a naked request for a new trial, but also a request for the chancellor to go back and study the evidence and the law again, to see whether perhaps a different result would have been reached. The judge could then, during the term, alter the decree or order, or withdraw it and direct a new trial.
That smells a lot like both reconsideration on the one hand, and rehearing on the other.
Even today in chancery court, lawyers may know under the rules that they are asking for rehearing, but they know, too, that they are asking for reconsideration. Out of curiosity, I asked my staff attorney to pull up the R59 motions that had been filed in the preceding year. Of the dozens filed, only a couple were styled or even asked for “rehearing.” Nearly every one was styled “Motion for Reconsideration,” or asked for reconsideration. That’s reconsideration, not rehearing.
Thus, I was sort of right, and sort of wrong in response to Judge Griffis. Right in the sense that the common usage is to call a R59 motion a request for reconsideration, and to ask for reconsideration. Wrong because the rule and pre-rule practice call for rehearing.
It’s not a big deal because the MSSC said many years ago after the MRCP went into effect that judges are to look to the substance of the motion, and not the form, and MRCP 8(f) mandates that pleadings be construed so as to do “substantial justice.” Thus, what you call the motion, and whether you ask for rehearing or reconsideration, is less important than clearly invoking MRCP 59.
Most “Motions for Reconsideration” are just that. They ask the court, “Please, take a look at this one more time and, please, change your mind.” That’s not in keeping with the rehearing language of R59, but it definitely captures what the pre-rules practice was. As the COA said in Brown v. Weatherspoon, which is a R60 case, but the principle is the same, “Finality should yield to fairness.”
Don’t worry too much about getting caught with your proverbial pants down in an appeal because you called your R59 motion one for reconsideration, rather than rehearing. It appears that reconsideration is the vogue word for our appellate judges, too …
- Check this out from the COA decision in Estate of Ristroph v. Ristroph, decided in January, 2013: “John then filed a motion to reconsider under Mississippi Rule of Civil Procedure 59. While awaiting the chancellor’s decision on John’s Rule 59 motion, Paul filed a motion for summary judgment with respect to the other alleged inter vivos gifts, contending these claims were also time-barred under section 15-1-49. The chancellor denied John’s motion to reconsider the timeliness of his petition to set aside the warranty deed, and John appealed the denial to the Mississippi Supreme Court.”
- And this from the COA in Rodgers v. Moore, et al., decided in November, 2012: “According to the briefs, plaintiffs filed a motion to reconsider the dismissal with the chancery court. The chancery court entered an order on March 8, 2007, denying the motion to reconsider.”
I am sure there are more, but you get the picture.
STRIKE THREE — YER OUT
February 6, 2013 § Leave a comment
In Estate of Ristroph v. Ristroph, handed down by the COA on December 4, 2012, we confront yet again the mantra that an appeal from a judgment that disposes of fewer than all of the issues before the trial court, and which does not include a certification under MRCP 54(b), will be dismissed. In this case, the principle lands home with a triple whammy.
As you may recall, I’ve described MRCP 54(b) here as the “Graveyard of Appeals.” That’s because of the rule’s requirement that, if the trial judge directs entry of a judgment as to fewer than all of the issues, he or she must include a finding that there is no just reason for delay, and directing entry of a final, appealable judgment as to the issues decided. The trial judge’s certification must have a reasonable basis and must not be an abuse of discretion. If the judgment lacks the certification, the appellate court will lack jurisdiction because an appeal lies only from a final judgment (MRAP 5 does provide for an interlocutory appeal to the MSSC, but that is discretionary with that court, and these comments pertain to non-interlocutory appeals).
Undaunted by the express requirements of MRCP 54(b) and the ever-growing body of case law strictly applying it, lawyers continue to file appeals from judgments disposing of fewer than all of the issues, apparently drawn to the appellate process like moths to a flame — with similarly self-immolatory results.
In Ristroph, John Ristroph filed a pleading in his father’s estate to set aside a deed from his father to his brother Paul. He filed a separate pleading challenging certain inter vivos gifts from his father to Paul. Both pleadings alleged undue influence.
The chancellor dismissed the challenge to the deed based on statute of limitations.
John then filed a motion for rehearing pursuant to MRCP 59. Before the chancellor could rule on John’s motion, however, Paul, having once struck paydirt with his statute-of-limitations argument, filed a motion for summary judgment claiming that John’s inter vivos gifts claims were also time-barred.
The chancellor entered an order overruling John’s MRCP 59 motion for rehearing, and John appealed. <STRIKE ONE>
While the appeal was pending, John filed a motion under MRCP 60 asserting a new argument based on lack of consideration.
The chancellor then overruled John’s MRCP 60 motion, as well as Paul’s motion for summary judgment. John filed yet another an appeal from this latest adversity. <STRIKE TWO>
The MSSC bundled John’s two appeals together and sent them downstairs to the COA, where they landed with a thump on the desk of Judge Maxwell, who astutely pointed out that the chancellor was not yet through with the case at the trial level because the claims as to the inter vivos gifts remained unresolved. Ergo, no jurisdiction. <STRIKE THREE — YER OUT>
From where I sit — reading an appellate judge’s interpretation of a cold record — I find it hard to grasp why and how attorneys are filing appeals from less-than-fully-dispositive judgments without a R54(b) certification. Here we had not one, but two, untimely appeals in the same case. That may be some kind of record. John’s counsel on appeal does get a “Z” for zealously representing his client, I guess, but still, two untimely appeals (strikes one and two) and a dismissal (strike three). That’s got to smart a little.
CORROBORATION BLUES
February 5, 2013 § Leave a comment
Tell me, how long, Judge, do I have to wait?
Can you let me know? Why must I corroborate?
— apologies to Rev. Gary Davis “Hesitation Blues”
We’ve visited the issue of corroboration in divorce cases several times on this blog. You can find posts on the subject here, here and here. As Judge Maxwell said in the case of Smith v. Smith, “[C]orroborating evidence need not be sufficient in itself to establish [habitual cruelty], but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true.” citing Jones v. Jones, 43 So. 3d 465, 478 (Miss.App. 2009).
If your case lacks corroboration, you will leave the courtroom sans a divorce.
You will find the latest example in the case of Gillespie v. Gillespie, decided by the COA January 29, 2013. I’ll let Judge Griffis’s decision do the talking:
¶13. Habitual cruel and inhuman treatment as a ground for divorce must be proved by a preponderance of credible evidence. Chamblee v. Chamblee, 637 So. 2d 850, 859 (Miss. 1994). This Court has stated:
Conduct that evinces habitual cruel and inhuman treatment must be such that it either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Fulton v. Fulton, 918 So. 2d 877, 880 (¶7) (Miss. Ct. App. 2006) (citation omitted). Generally, the “cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be [sufficient] for a divorce on this ground.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶14) (Miss. 2002) (citations omitted).
¶14. In Chamblee, the supreme court addressed the requirement that the claims of cruel and inhuman treatment be corroborated by a witness. Chamblee, 637 So. 2d at 860. The court noted that the wife produced only one corroborating witness. Id. The witness simply observed the presence of bruises on the wife’s arm and had no independent knowledge of how they got there. Id. Finally, the husband denied abusing the wife. Id. For these reasons, the court determined the chancellor did not err when he denied the wife a divorce on the ground of cruel and inhuman treatment because she failed to prove her case by a preponderance of the evidence. Id.
¶15. In Fulton, 918 So. 2d at 880-81 (¶¶9-10), the wife produced three witnesses to corroborate her claim that her husband abused her. Id. at 880 (¶9). Her mother testified she observed bruises. Id. Also, a friend testified that on many occasions the wife called late at night to discuss the altercations between her and her husband. Id. Finally, a cousin testified she took pictures of the wife’s bruises and scratches in her mouth. Id. The cousin also observed tension in the household when she visited. Id. This Court determined that this evidence was sufficient to grant a divorce based on cruel and inhuman treatment. Id. at 881 (¶10).
¶16. Here, Timmy offered one witness, James Moss, to corroborate his claim of cruel and inhuman treatment. Moss observed bruises on Timmy but had no independent knowledge of how Timmy had received the bruises. Moss’s testimony was based not on his own knowledge or information but on what Timmy had told him.
¶17. Timmy also claims that Meagan observed an attack. But, Meagan did not testify to corroborate his claim.
¶18. No corroborating witness, with independent knowledge of the instances of cruel and inhuman treatment, testified to establish the claim of cruel and inhuman treatment. As a result, we find that the chancellor’s finding of grounds for a divorce due to cruel and inhuman treatment was not supported by substantial credible evidence in the record. Nevertheless, because we affirm the chancellor as to the grounds of adultery in the following section, this decision does not affect the outcome of this appeal.
The difficult corroboration cases seem to be the ones that I refer to as self-corroboration, which occurs when all that the corroborating witness knows is what he or she was told by the alleged abusee, as in Chamblee. In Smith, the only corroboration was police reports that the alleged victim had made, which were based on her own allegations and nothing else. The Fulton case, above, is a good illustration of the web of circumstantial evidence that will be found to be corroborative.
No corroboration, and you have to hesitate.
THE END OF COLLEGE EDUCATION SUPPORT?
February 4, 2013 § 2 Comments
The seminal case of Nichols v. Tedder, 547 So.2d 766 (Miss. 1989) established once and for all two significant principles of Mississippi family law: One, that the duty of support for a child includes college education support; and two, that the duty to support a child can extend no further than the child’s 21st birthday.
Senate Bill 2339, introduced in this session by Senator Burton, would eradicate both principles.
The bill would amend MCA 93-11-65 with this language:
(9) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, for child support orders established on or after July 1, 2013, emancipation shall occur when the child:
(i) Attains the age of eighteen (18) years or graduates from high school, whichever comes later, but in no event shall the duty of support continue after the age of nineteen (19) unless otherwise agreed to in the support order, or
(ii) Marries, or
(iv) [sic] Joins the military and serves on a full-time basis, or
(b) Unless otherwise provided for in the underlying child support judgment established on or after July 1, 2013, the 260 court may determine that emancipation has occurred and no other support obligation exists when the child:
(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or
(ii) Cohabits with another person without the approval of the parent obligated to pay support.
(c) The duty of support of a child who is incarcerated but 268 not emancipated shall be suspended for the period of the child’s incarceration. [Emphasis added]
The implications of these changes for divorce practitioners?
Under our present law, the parties may agree to college education support to age 21 (or beyond if they can agree). They know that if they can not reach an agreement the court will likely order college support to age 21, which is the limit of the court’s authority under Nichols v. Tedder. So, recognizing the likelihood, most divorcing parents agree to college education support to age 21.
Under this bill, unless the parties agree, the duty of support will absolutely end at age 19, which would be during the sophomore or possibly junior year of college for most children. The court would have no authority to order any support beyond age nineteen, eliminating the bargaining pressure in favor of college support.
Based on years of experience negotiating PSA’s, I expect that college education support will fall into the category of “my client prefers to help his child voluntarily rather than being bound by any contract,” which translates into “he’ll never do it,” or “he might agree in the future if his ex will give up something more.”
Anyone who has practiced any amount of divorce law is painfully aware of what many refer to as “divorce blackmail.” That’s the situation created by our present statutory divorce scheme, which requires the parties to agree in order to obtain a divorce where one of the fault grounds is not applicable. The party wanting the divorce more must give up more, sometimes everything, just to obtain the divorce. Under this bill, you can add college education support to the already long list of bargaining chips.
College education has been found conclusively to be a good thing for young people. It makes their financial future more secure, enhances earning ability, exposes them to new ideas, expands their horizons, and imparts advantages to them in innumerable ways. Children of divorced parents already face many financial challenges. Why would the public policy of Mississippi be to diminish the opportunity of children in a divorce to a college education?
The only reasons assigned for this proposal that I have heard are: (1) that Mississippi and New York are the last two remaining states who have 21 for the age of emancipation; (2) that lowering the emancipation age is the quid pro quo demanded by some legislators for them to agree to raise the statutory child support guidelines; and (3) that it would save DHS a lot of money.
The fact that we are one of only two states with this particular age of majority seems to me a laughable justification. If we were to go through and change every law where we were one of only a few states with a certain provision, we would literally have to rewrite our code, including elimination of separate equity courts (only four other states, as far as I know). Although we should always be informed and inspired by what other states do, our laws should be based on what is best for Mississippians, not on what everyone else is doing. The acid test should be: “How does this benefit our children?”
The second reason, about raising the guidelines, is based on an earlier part of the bill that would increase guideline child support percentages. The quid pro quo is that if we are going to increase the amount of child support being paid, we should decrease the amount of exposure time for the payer. I understand the politics of trade-offs, but how does this benefit children in Mississippi?
The last is a byproduct of the harsh 21st century reality that many policy decisions that directly and indirectly affect many citizens are driven by budget considerations, often budget considerations that those same citizens neither benefit from themselves nor will ever. Yes, this will be a boon to the bean-counters at budget time, but again, how does it benefit our children?
I would have less heartburn with this bill if it were amended to add an education clause that would authorize court-ordered education support — college, technical, or otherwise — to age 21.
JUDICIAL NOTICE
January 31, 2013 § 4 Comments
The COA’s decision in Riverview Development v. Golding Development, decided January 22, 2013, deals with an adverse possession controversy, but I want to focus on a minor aspect of the case that is widely misunderstood: Judicial notice.
Beginning at ¶12, Judge Fair’s opinion turns to an issue of judicial notice:
Remaining at issue is Riverview’s contention that the chancellor erred in finding that Golding held record title to the disputed property, because Golding’s deraignment of title was never entered into evidence during the trial. This record title formed the basis of the chancellor’s decision to quiet title in Golding. “It is an elementary proposition of law that in a cloud suit the complainant has the burden of proving his title and may not rely on the weakness of [his] adversary’s title.” Culbertson v. Dixie Oil Co., 467 So. 2d 952, 954-55 (Miss. 1985).
¶13. It is true that the supporting deeds were not entered into evidence during the trial, but they were submitted with Golding’s pleadings and are public records. Given that the deeds were duly recorded, we find no abuse of discretion in the trial court taking judicial notice of their existence under Rule 201(b) of the Mississippi Rules of Evidence. Under Rule 201, “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications.” Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990).
In Enroth, the court stated:
The question then becomes, how the Court should go about the business of judicially noting these facts?
It is a cliche of judicial notice that a fact is not judicially noticeable by virtue of being known to the judge; conversely, the mere fact that the judge happens to be unacquainted with the fact of common knowledge should not bar him from taking judicial notice of it. This situation is likely to arise when a judge sits in another district and the fact to be noticed is a matter known only within the territorial jurisdiction of that court or where some local fact is to be noticed on appeal. But even where the judge thinks that he knows the fact to be a matter of common knowledge, it would be a salutary practice to check his understanding against other sources of information when this can be conveniently done…. 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5108 at 513-14 (1977).
A court may look to any source it deems helpful and appropriate, including official public documents, records and publications. The Court is not limited by rules of evidence otherwise enforceable in judicial proceedings. Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925) said:
He may resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. ( citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.
In the case at bar, the Court recited and listed the sources it had considered and included among those (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue. We hold these bases adequate that the Court may judicially know the factual components of the Hospital’s status.
The scope of the extra-judicial inquiry in the now nearly 23-year-old Enroth case seems somewhat breathtaking to these twenty-first-century eyes, but there it is, and I believe it is still good law in Mississippi.
Remember, of course, that the judge is required to allow any party to present evidence or otherwise answer the evidence created by judicial notice, but that is another issue.
In Riverside, the chancellor took notice of the contents of the court file and relied on exhibits to the pleadings because, apparently, the lawyers had overlooked getting those crucial documents into evidence. Clearly, the best practice is to do it yourself, but Riverside and Enroth point another way to a solution.
THE RIGHT OF AN ADOPTED CHILD TO INHERIT FROM THE NATURAL PARENTS
January 30, 2013 § Leave a comment
Consider this scenario:
Father and Mother One have a daughter together, whom we will call Daughter One. Mother One dies and Father is remarried to Mother Two. Father and Mother Two have a daughter together, whom we will call Daughter Two. Soon after Daughter Two’s birth, Father and Mother Two are divorced. Mother Two remarries, and her new husband, with Father’s consent, adopts Daughter Two. Father never remarries, has no more children, and dies intestate. Who are his heirs?
If you answered both Daughter One and Daughter Two, you are correct.
MCA 93-17-13 specifies that ” … the natural parents and natural kindred of the child shall not inherit by or through the child, except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated except as to a natural parent who is the spouse of the adopting parent.” Nothing in the statute precludes the adopted child from inheriting from the natural parents.
In Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970), the Mississippi Supreme Court held:
While the effect of a final decree of adoption is that the natural parent or parents will not inherit by or through the child, and all parental rights are terminated, Mississippi’s adoption law does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is terminated. We think the intent of the legislature is clear; they intended for the child to continue to inherit from his or her natural parents.
2 C.J.S. Adoption of Children s 63(c) page 454 (1936) succinctly states the applicable law in this way:
‘In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in s 6 of this Title, and also, in in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.’
There is no express legislative declaration to that effect in Mississippi’s adoption law.
This issue was presented to me recently when a lawyer inquired whether an adoption decree that included the express language that the minor child ” … shall inherit from the natural father” would comport with the law. And, if so, would it then mean in the fact scenario set out above that Daughter Two would be included as an heir. Based on my research, I believe it does, whether the express language is included in the adoption decree or not. Don’t you agree that there are some implications here for intestate estates?
NAMING NAMES
January 29, 2013 § 1 Comment
The COA’s decision in Powell v. Crawley, handed down January 22, 2013, presents an opportunity to remind you of several aspects of name changes about which you need to be aware.
Christina Crawley gave birth to a baby daughter on January 29, 2010. The following day, Chase Powell, who was not married to Christina, signed two forms provided by the Mississippi Department of Health. The first form was an acknowledgment of paternity. The second was a “Name of Child Verification Form,” which included the following language:
By my signature[,] I verify and agree that the [c]hild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.
The verification form also included the following statement:
The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the [f]ather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [c]hild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.
Chase verified the child’s name as Carsyn Michelle Crawley.
Nine months later, Chase filed a complaint in chancery court seeking an adjudication of paternity, child support, and visitation. He also asked to change Carsyn’s surname to Powell. At hearing, the matter was presented solely by argument of counsel, who offered the forms described above for the court’s inspection.
The chancellor ruled that Chase had waived his right to have the child’s surname changed when he signed the verification form.
The COA affirmed the chancellor’s decision, but not for the reason assigned by the trial judge. Judge Irving, writing for the majority, said:
“We need not decide whether the chancery court abused it[s] discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So. 2d 285, 289 (¶13) (Miss. Ct. App. 2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).”
So here are a few nuggets to take away from this decision:
- If you are seeking to change a person’s name only, then you proceed under MCA 93-17-1(1), which would obviously require in a case such as Chad Powell’s that the mother and father would be parties.
- Another frequent cause of name changes is post-divorce, when the name change was not included in the divorce judgment and the petitioner wants a court order to get Social Security, driver’s license, retirement and other records straight. That kind of name change is also governed by MCA 93-17-1(1). It would be an ex parte action, since there is no other interested party.
- If you wish to change the name on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, you can expect a result strikingly similar to Chad Powell’s.
- MCA 93-17-1(2) allows the court to “legitimize” a child when the natural father marries the natural mother. Since that relief would include adding the father to the birth certificate, you should comply with MCA 43-57-23 and make the State Registrar of Vital Records a party.
- There is a dearth of case law as to how the statutes authorizing establishment of paternity via acknowledgment interact with the statutes for parentage (paternity), child support, custody and visitation. If I were in practice, I think I would have advised Chase to file the parentage action as he did so as to open up all of the other relief incidental to being the father. Acknowledgment of paternity is only that; it does not confer visitation or custodial rights, does not set child support, and may even be set aside in certain conditions.
- This decision sidestepped the question of the chancellor’s authority and scope of discretion in changing the child’s name. Since it is not res judicata as to the State Bureau of Vital Statistics, I would guess that Chase could file his suit again, this time making the agency a party. Maybe then we’ll get an answer.
DRINKING YOUR OWN TOXIC COCKTAIL
January 28, 2013 § Leave a comment
When you pursue litigation that you know is not meritorious, and you learn in discovery that you have no possible hope of prevailing, and you file an improper motion for recusal with false allegations against the court, you have concocted a toxic cocktail that, when consumed, will burn a deep hole in your pocketbook by way of sanctions. Need proof?
Consider the case of Sullivan and Stubbs v. Maddox, decided by the COA on January 22, 2013.
Sullivan, represented by his attorney, Stubbs (both collectively referred to as “Sullivan” in the COA opinion), filed suit in 2005 to confirm and quiet title to some property, based on a claim of adverse possession. His suit was prompted by the Maddoxes’ claim to the same property. When he initiated the suit, he obtained an injunction to keep the Maddoxes off of the property.
The suit apparently languished for years.
In April, 2011, the Maddoxes filed a motion for summary judgment taking the position that title to the property was vested in the United States, and that neither Sullivan nor Maddox had any claim to it by adverse possession because federal law prohibits adverse possession against the federal government.
Five days later Sullivan filed a motion asking the chancellor to recuse himself. The Maddoxes responded that the motion was untimely filed and was fatally defective for failure to include an affidavit setting forth the factual basis, both as set out in UCCR 1.11.
On May 3, 2011, the parties appeared before the court for a hearing on both motions, and the recusal motion was taken up first. Sullivan took the position that the chancellor should recuse because one of the Maddoxes’ attorneys had represented the judge’s court administrator’s husband in a criminal matter. The judge acknowledged the fact, as well as that Stubbs had represented the court administrator in a divorce action. He rejected both bases as causes to recuse, because neither would cause a reasonable person, knowing the pertinent facts, to doubt the court’s impartiality. The judge also found that the recusal motion failed to comply with UCCR 1.11 for the reasons assigned by the Maddoxes.
In the course of presenting the motion, Stubbs attempted to make a proffer alleging an unreported campaign contribution to the chancellor. The charge had not been included in the motion to recuse, and there was no affidavit to support it.
The court went on to hear the motion for summary judgment. In his ruling, the judge granted summary judgment in favor of the Maddoxes. He stated in his opinion that Stubbs had disclosed to the court that he had warned Sullivan before he filed the suit that it was a weak case, that there was no government survey or patent out of the US to support his claim, and that there was no color of title. The judge also found that the unsubstantiated accusation against him was made as a threat by counsel, and he set a hearing date for possible sanctions.
The Maddoxes filed a motion for sanctions under MRCP 11 and the Litigation Accountability Act. Based on all of the proceedings to that point, as well as the record made on the motion, the chancellor assessed sanctions against Sullivan and Stubbs jointly, in the amount of $42,922.91. As the COA opinion, by Judge Carlton, stated at ¶11:
In sanctioning Sullivan and Stubbs, the chancellor specifically found that the following actions demonstrated frivolous pleadings had been filed and frivolous arguments had been made for the purposes of harassment and delay, without substantial justification, and with disrespect for the integrity of the court: (1) Stubbs’s admission that before commencement of the action he had advised Sullivan of the weakness of his claim to confirm and quiet title; (2) Sullivan and Stubbs’s failure to abandon the claim after their expert witness testified in his deposition that the United States had issued no patent for the subject property; (3) Sullivan and Stubbs’s failure to make any effort to determine the validity of the claim before raising it; and (4) the filing of an improper motion for recusal and false allegations against the court. The chancellor held that these various actions constituted a willful violation of Rule 11 and the Litigation Accountability Act, as well as Rule 8.2(a) of the Rules of Professional Conduct (prohibiting a lawyer from making a statement that he knows to be false or making a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge).
The COA affirmed the chancellor on all points.
The serious lesson to take from this case is that Rule 11 and the Litigation Accountability Act have bite. So do the Rules of Professional Conduct. MRCP 11 specifically states that an attorney’s signature on a pleading (and that includes not only initial complaints, but also all motions) “” … constitutes a certificate that … to the best of the attorney’s knowledge, information and belief there is good ground to support it, and it is not interposed for delay,” and goes on to provide for sanctions for its enforcement.
When in the course of a hearing you recklessly throw out unsubstantiated charges against the court, you are giving the judge no alterntive but to sanction you. To do otherwise the chancellor would be derelict in her duty to preserve the dignity and respect of the court, as provided in UCCR 1.01.
When you learn in the course of a lawsuit that it is not meritorious, and that there is no hope of prevailing, counsel your client to dismiss it. If your client will not cooperate, file a motion to withdraw, and do not put it off, because the judge can deny your motion if it would delay the trial, and you would then be at risk for sharing your client’s sanctions, if the court assesses them.
Don’t put yourself in a position where you have to drink that toxic cocktail that you yourself concocted.
