CUSTODY WHEN THERE IS NO DIVORCE
November 27, 2012 § Leave a comment
In the COA case of Jones v. Jones, decided November 13, 2012, Carrie Jones filed for divorce against her husband, Donald, who in turn filed a counterclaim for divorce against her. The parties agreed to present the case in a bifurcated fashion, first presenting proof of grounds for divorce and letting the court adjudicate the divorce before proceeding to other issues.
Carrie presented her evidence, at the conclusion of which Donald moved for dismissal under MRCP 41(b). The chancellor ruled that Carrie had not met her burden of proof, and dismissed her complaint. Donald then dismissed his counterclaim. When Carrie asked to go forward on the remaining isssues of child custody and support, the chancellor refused on the basis that her complaint was dismissed, and there was nothing further to adjudicate.
Carrie appealed, raising several issues (she did not contest the denial of the divorce).
First, she claimed that the chancellor had a constitutional duty to protect the child, and that the court should have adjudicated custody even though the divorce complaint was dismissed. Judge Fair, writing for the majority, agreed that the chancery court has a duty to protect children, but disagreed that the duty extended to adjudicating custody in a situation such as this. He wrote:
This [constitutional] responsibility does not impose upon chancellors an affirmative duty to adjudicate custody for every dismissed divorce complaint.
¶6. The Mississippi Supreme Court has held that a chancellor may provide for the custody of children after dismissing a complaint for divorce. See Waller v. Waller, 754 So. 2d 1181, 1183 (¶12) (Miss. 2000). “The court, however, is not required to make a decision regarding custody where it dismisses the petition for divorce.” Id. (citations omitted).
¶7. In domestic-relations matters, chancellors enjoy considerable discretion and are trusted to evaluate the specific facts of each case. See Harrell v. Harrell, 231 So. 2d 793, 797 (Miss. 1970). Here, the limited record contains no indication that either parent would be unfit or unsuitable for custody. We cannot say the chancellor abused his discretion by declining to adjudicate custody.
Second, she argued that the court should have dismissed only the divorce complaint and left standing her claim for custody. This, too, the court rejected:
¶10. Carrie characterizes her claims for custody and child support as independent actions cognizable under section 93-11-65 of the Mississippi Code Annotated (Supp. 2012). But our case law contradicts this interpretation. In Slaughter v. Slaughter, 869 So. 2d 386, 397 (¶33) (Miss. 2004), the Mississippi Supreme Court held that a custody matter may not proceed under section 93-11-65 when a divorce is pending. Therefore, Carrie’s claims for custody and child support cannot properly be understood as independent issues. Mississippi Code Annotated section “93-5-23 provides for the child’s care and custody in a divorce situation and 93-11-65 . . . is an alternative[.]” Slaughter, 869 So. 2d at 396 (¶33).
[The opinion goes on to distinguish the holding in the modification case, Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶8-10) (Miss. 2007)].
How do you avoid a result like Jones? It seems to me you could plead in counts, Count I being the claim for divorce, equitable distribution, a 93-5-24 claim for custody, etc., and Count II being the 93-11-65 child custody and support claim. By pleading in counts you are in my opinion filing what amounts to severable law suits. Under Slaughter, then, you would be barred from proceeding on Count II as long as Count I is pending. But if Count I is dismissed, you still have Count II to fall back on, and it would be viable at that point because the 93-5-24 claim is dismissed.
There is a caveat, however. The venue requirements for divorce and 93-11-65 are not identical. You may have venue for the divorce, but not for 93-11-65.
I’m not saying categorically that this is the answer to the problem because I have not researched the question beyond Jones and Slaughter. The tactic I am suggesting, however, was not employed in either of those cases, as far as I can tell from reading the opinions. Thus, my solution gives you an arguable basis to go forward on custody if you are stymied on grounds for divorce.
CATES v. SWAIN REDUX
November 26, 2012 § 1 Comment
This from the MSSC decisions of November 15, 2012:
Mona Cates v. Elizabeth Swain; Tate Chancery Court; LC Case #: 06-6-243(PL); Ruling Date: 10/29/2010; Ruling Judge: Percy Lynchard, Jr.; Disposition: Petition for writ of certiorari filed by Elizabeth Swain is granted. To Grant: Waller, C.J., Carlson and Dickinson, P.JJ., Kitchens, Chandler, Pierce and King, JJ. To Deny: Randolph, J. Not Participating: Lamar, J. Order entered.
You may recall that this is the April, 2012, COA case in which Judge Maxwell’s opinion held in essence that equitable relief is not available to enforce implied contractual rights between unmarried cohabitants. The holding which was based on the MSSC decision in Estate of Alexander, 445 So. 2d 836, 840 (Miss. 1984), that any such relief must be created by act of the legislature. The decision also touched on rights of unmarried couples in relationships nearly tantamount to marriage. You can read my post about Cates v. Swain here.
So what does the grant of cert in this case portend?
It seems unlikely that the court would have granted cert merely to reiterate what Judge Maxwell said in his excellent exposition on Alexander. And it seems just as unlikely that the MSSC would go so far as to reverse Alexander.
But when one looks at Cates v. Swain, it seems that there are some inequities that could be addressed without sweeping aside Alexander. After all, the court did say in that case that, “While the judicial branch is not without power to fashion remedies in this area, we are unwilling to extend equitable principles to the extent plaintiff would have us to do, since recovery based on principles of contracts implied in law essentially would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature.” That seems to me to leave some wiggle room on at least two points: One, that the judicial branch has the power to fashion remedies in this area, and might do so in this case; and two, that equitable remedies may be narrowly crafted to address the inequities without creating the problems contemplated in Alexander.
It will interesting to see how this develops. Stay tuned.
MEDIATION THAT WORKS
November 21, 2012 § 2 Comments
Thanks to Lydia Quarles for providing the thoughtful series over the past week focusing on successful mediation in domestic cases.
My hope is that you will take Lydia’s insights and use them as a springboard to explore ways to maximize success with mediation in domestic litigation.
There is no issue that can not be resolved by agreement if there are imaginative lawyers advising clients who come to the process with good will and flexibility. We older lawyers are familiar with the maxim that “child custody is the one issue that can not be settled,” but with joint custody and increasingly liberal visitation, coupled with ever-greater mobility, even that issue can be mediated successfully. There is no reason why equitable distribution, alimony, child support, visitation, and even attorney’s fees can not be dealt with the same way.
Next month we’ll take another look at mediation with practical tips from attorney Donald C. Dornan of Biloxi.
MEDIATION THAT WORKS, PART V: THE $64,000 QUESTION
November 20, 2012 § Leave a comment
This is Part V in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
THE $64,000 QUESTION
When I am mediating a domestic issue, I always begin the first caucus with this question to the party: “If you could be your own judge — and I know that you would be reasonable and fair, knowing that you cannot have it all – how would you determine the issues that face you and the other party, and why would you do it that way?”
Prepare your client to be able to identify the issues that must be resolved for mediation to be effective, and how he/she would resolve them and why. The ability to communicate this to the mediator can go a long way in preparing your client to understand that there is give and take in mediation that there will not be in a trial. It also prepares your client to be reasonable and sensitive in approaching emotional issues.
Remind him/her that things can be resolved in mediation that cannot even be broached in a courtroom and if some of those things are of significance to him/her, this is the opportunity to discuss them and sort them out.
MEDIATION THAT WORKS, PART IV: LYDIA’S CHEAT SHEET
November 19, 2012 § 1 Comment
This is Part IV in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
LYDIA’S CHEAT SHEET
Questions to ask yourself in order to aid the mediator if the process gets bogged down:
- What does my client want to achieve?
- What does my client think the other party wants to achieve?
- Does my client have any particular expectations about the process or expectations about the resolution?
- Can my client identify for the mediator what he/she believes the key issues are?
- Can my party identify for the mediator what he/she believes the key stumbling blocks to resolving the issues are, either for him/herself or for the other party?
- Does my client have to “account” to others for the resolution which may be reached, or “explain” his/her decision to others (advisor, family, friend)? If so, what do I need to know about those others?
- Does my client have an interest in maintaining a relationship with the other party or, for that matter, initiating a better relationship with the other party? In Chancery matters, it is often significant for relationship protection to occur within the context of a mediation. Chancery is often the “family court” and family matters, however strained, can be protected and, with a good mediator, even improved.
- Does my client perceive that the other party has ulterior motives?
- Does my client have personal goals that will be affected by the outcome of the process?
- Are there any outside constraints on the outcome, either real or perceived?
MEDIATION THAT WORKS, PART III: USE SILENCE AND TIME AS ALLIES
November 15, 2012 § 2 Comments
This is Part III in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
LEARN TO USE SILENCE AND TIME AS ALLIES
As litigators, we talk.
In mediation, it’s different. We must learn to use silence and time as allies. First of all, parties need to vent. Most mediators will give all parties a period of time to vent in a joint session. Encourage your client to listen respectfully – really listen – while the other party tells his/her story. If this party feels that he has been heard, it makes a difference in the remainder of the mediation.
Recognize that one party to the mediation may need silence and/or time to contemplate. That party may be on the verge of coming to a resolution which causes him/her to give up something dear, to realize that he/she has made erroneous assumptions, or to personally address his/her fear of loss of power, prestige or status. We must give the party time to process those feelings and thoughts.
Mediation is a process. Time and silence are allies.
MEDIATION THAT WORKS, PART II: CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE
November 14, 2012 § Leave a comment
This is Part II in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE
Daniel Yankelovich says, in The Magic of Dialogue: Transforming Conflict into Cooperation: “There is no greater obstacle to dialog than mistrust.” Litigation is laced with mistrust. In order for us to be effective for our client in mediation, we must focus on the party opposite and capture their attention and confidence. It is only after that party has deemed us to be trustworthy and rational that we can begin to effectively combat the mistrust that the parties have built up for each other, disclosed or undisclosed.
One way to develop this rapport is to reiterate the goodwill with which you and your client have approached the mediation. Remind party opposite that there is a mutuality of purpose between them, and that purpose is the successful resolution of a joint problem. Encourage them to listen to each other, and listen to each other empathically. Remind everyone that people are rarely the demons that they may seem.
One of the simplest ways to capture the attention and confidence of another is to demonstrate a genuine interest in him/her. It is refreshing for a party to hear that while in the courtroom you will come on like a tiger, mediation is the place where we can all be willing to relax and explore options that will not be available at trial. I always like to remind my client and party opposite that you can never predict what a trial judge or jury may do, and mediation is the last best opportunity to take control of their future. While they may not get everything they want in mediation, they surely will not get everything they want as the result of a trial.
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