WHAT DOES IT TAKE TO TRIGGER RELIEF FROM FRAUD ON THE COURT?
October 10, 2012 § 4 Comments
Basically, all you have to do is bring it to the court’s attention, and the judge can do the rest. That’s what the COA decision in Finch v. Finch, handed down October 2, 2012, says.
But before we talk about Finch, let me remind you of the MSSC decision in Trim v. Trim, which held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court. There is no time limit to when that issue can be raised. So to allow your client to submit a false 8.05 is to allow the judgment always and forever to be vulnerable to possibly fatal attack, as was the case in Trim.
Only two months ago the COA held in Rogers v. Rogers that if you are going to claim fraud on the court, you will have to prove all of the classic elements of fraud, or you will fall short.
Now we have Finch, further defining the scope of fraud on the court. In Finch, Rosemary and Stewart, no longer love birds, got an irreconcilable differences divorce in which the special chancellor awarded Rosemary alimony based on financial proof submitted by the parties, including Rosemary’s claim that she was paying certain marital debts that she claimed she had been paying throughout the marriage.
The special chancellor’s appointment expired, and a newly-elected chancellor took the bench and assumed responsibility for the case.
In post-divorce litigation, Stewart asked the court to find Rosemary in contempt and to modify the alimony to take into consideration that Rosemary had “falsely represented” to the court that she had been paying the marital bills. He claimed and proved that she had failed to pay an American Express account, forcing Stewart to borrow some $38,000 to pay it. Also, she had not disclosed other family debt in the divorce that affected Stewart.
The chancellor found that Rosemary’s actions were a fraud on the court, and she decided that the fraud permitted her to reduce the alimony under MRCP 60(b). Stewart had not filed a 60(b) motion, had not specifically requested any 60(b) relief, and did not specifically plead or charge fraud. Rosemary appealed, claiming that it was error for the chancellor to grant 60(b) relief sua sponte, which had the effect of setting aside and doing away with issues to which the parties had agreed and settled before the original trial.
Judge Ishee’s opinion for the court states:
¶18. While Stewart did not file a Rule 60(b) motion, he did allege fraud in the petition for contempt and modification. Furthermore, “[t]he chancery court is vested with broad equitable powers with which it is able to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief from the judgment under Rule 60(b) and may do so upon its own motion.” Tirouda v. State, 919 So. 2d 211, 214 (¶7) (Miss. Ct. App. 2005) (citing Edwards v. Roberts, 771 So. 2d 378, 386 (¶28) (Miss. Ct. App. 2000)).
Rule 60(b) even states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Accordingly, the chancery court did not err by finding fraud upon the court and altering the final divorce decree without Stewart filing a Rule 60(b) motion.
Rosemary also tried to claim that the fraud, if any, was on Stewart and not on the court, which argument the COA rejected, based on Trim. She argued in addition that there was inadequate proof in the record of the elements of fraud, which the COA likewise rejected, based on the proof in the record and the findings of the chancellor.
To return to my initial point: all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”
RECIPES FOR INDIRECT CONTEMPT
October 9, 2012 § 2 Comments
We talked here before about the distinction between indirect and direct criminal contempt. Indirect contempt is also called constructive contempt.
Here are some examples where the courts have found it proper to proceed for indirect criminal contempt …
- Acts committed outside the presence of the court that hamper its functioning. In Hinton v. State, 222 So.2d 690, 691 (Miss. 1969), the court found that defense counsel’s failure to disclose to the DA (and, presumably, to the court) that he represented a juror’s wife was constructive criminal contempt.
- Acts that hinder or prevent service of process, with or without force. Aarons v. State, 105 Miss. 402, 62 So. 419 (1913).
- Published materials that address pending court matters and tend to prejudice potential jurors may be punished for constructive contempt; however, there are free speech ramifications that must be carefully weighed by the court. See, Jeffries v. State, 724 So.2d 897, 899 (Miss. 1998).
- Abuse of process. In Higgins v. State, 218 Miss. 883, 891, 56 So.2d 61, 63 (1952), the filing of 58 suits for the purpose of harassing the Rankin County Sheriff was found to be constructive criminal contempt.
- Contemptuous language in a motion. Wood v. State, 227 So.2d 288, 290 (Miss. 1969).
- Contacting or attempting to influence jurors. Young v. State, 230 Miss. 525, 527 (1957). Even a request to bribe a juror, which was not actually attempted despite the request, has been found to be indirect contempt. Brewer v. State, 176 Miss. 803, 809, 170 So. 540, 541 (1936).
- Filing false affidavits of return of process with the court clerk. Corr v. State, decided September 20, 2012, and In re McDonald and Cheshire, decided October 4, 2012, both by the MSSC.
MARITAL FAULT AS SOMETHING ELSE
October 8, 2012 § Leave a comment
I’ve talked here before about how lawyers on appeal often argue that the chancellor’s decision should be reversed on the basis that he or she used custody as a sanction for marital misconduct. And there is case law that supports that argument. Brekeen v. Brekeen, 880 So.2d 280, 287 (Miss. 2004); Smullins v. Smullins, 77 So.3d 119, 129 (Miss.App. 2011); Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
The thing is that custody may not be used to punish the misconduct, nor may the misconduct be the sole basis, but misconduct may properly be considered as one among the other several applicable Albright factors, and it may be considered as proof of several other factors.
In the case of Collins v. Collins, decided by the COA on October 2, 2012, the chancellor had proof of Kim Collins’ adulterous relationship with a man (Haley) other than her husband, Jarrad. The evidence was that she took trips to rendezvous with the man, leaving her son Conner with someone else, presumably her husband. She spent dozens of hours talking on the phone with her paramour and texting him. Judge Russell’s opinion says:
¶18. It appears from the record that Kim’s adultery was important to show how her behavior with the minor child changed during that period. There was testimony that since her involvement with Haley, Kim appeared to be gone more often and was not around Connor as much as Jarrad. Jarrad’s mother testified that Kim had not been a good mother the last two years because Kim put her relationship with another man before her son.
* * *
¶20. As in Smullins, the chancellor expressed concern over Kim’s involvement with another man because of its impact on her relationship with Connor. Thus, the chancellor’s findings “were not a sanction against an adulterous parent . . . .” Smullins, 77 So. 3d. at 129 (¶46).
When you present your child custody case, don’t put all your eggs in the adultery or other misconduct basket without adding how you want the judge to fit that testimony into the other Albright factors. For instance, when your client testifies about the misconduct, ask why that behavior concerns him or her vis a vis custody, and prepare the witness to address continuity of care, stability, parenting skills, demonstrated willingness and capacity to provide care for the child, physical and mental health, emotional ties, and any other conceivable relevant factors. Only after you have done that should you harp on the moral fitness factor.
in Collins, the chancellor had an ample basis to find that Kim had undercut her own case for custody by choosing to put her relationship with the other man ahead of her attention for her son. When the chancellor put it in those terms, the COA had no way to go but to affirm.
FREEDOM TRAIL
October 5, 2012 § Leave a comment
Last week marked the fiftieth anniversary of James Meredith’s enrollment at Ole Miss. The tumult and combat that surrounded the diminutive Meredith’s entrance to the university has often been characterized as “the last battle of the Civil War.” It’s an event we have talked about here before.
But as much as Meredith did to bring down the oppressive reign of white supremacy, there was much struggle to come after. The bloody summer of 1964 — “Freedom Summer” — was especially noteworthy, because its murders sent a shiver of revulsion through the collective conscience of the nation that directly gave rise to the 1964 federal Civil Rights Act. Gradually, with the weight of the federal government behind it, the civil rights movement demolished barrier after barrier.
And so, as the weeks click by, we will be clicking off fiftieth anniversary after fiftieth anniversary of milestones in the Civil Rights Era.
I saw that one of the events to commemorate Meredith’s feat was the unveiling of a marker on the Mississippi Freedom Trail at Ole Miss. To date, the Freedom Trail has markers at Bryant’s Grocery in Money, Medgar Evers’ home in Jackson, The Greyhound Bus Station in Jackson, Jackson State University, and Mississippi State Penitentiary at Parchman.
A list of the sites planned for the first 30 markers is here.
It’s a bit of a surprise to me that there is no marker slated for Meridian, which: had the biggest COFO operation and Freedom School in the state in 1964; was the base of operations for Schwerner, Goodman and Chaney, who were murdered in nearby Philadelphia; and was the site of the state’s Freedom School Convention in 1964.
There is a group in Meridian that has secured ownership of the old Fielder & Brooks drug store, which housed the COFO headquarters. They plan to restore it and create an educational center there. As always, funding is the main obstacle.
Knowing and understanding our history is vitally important. We have to comprehend the forces that have shaped us, our ethos and the place where we live in order to be able to see clearly where we can and should go from here. The history of racial conflict and gradual reconciliation is so deeply ingrained in our culture that we must know and understand it so that we can know and understand ourselves.
No place on earth is better equipped by experience to show and tell the way out of racial oppression than Mississippi. Others can talk about it, but we are living it, day by day, increment by increment. To bear that witness, however, we must be able to tell our history.
James Meredith bravely blazed a trail to freedom in 1962. Many others, in ways large and small, blazed similar courageous paths. Mississippi’s Freedom Trail will help us remember.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #1
October 4, 2012 § 2 Comments
This is the tenth and last in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these are familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #1 …
Be Professional. Safeguard your reputation with the court.
Being professional is a combination of a lot of traits that include preparation, punctuality, competence, and a professional demeanor. Here is a bulleted list of some things to bear in mind:
- Be on time. It is rude in the extreme to keep the court and everyone else waiting while you mosey your way to the court house. Some judges hate it so much that they treat it as contempt. UCCR 1.05 specifically says, “When any civil action has been set for, or adjourned to, a particular hour, all officers, parties , witnesses and solicitors [ed.’s note: solicitor is the old-fashioned term for a practitioner in chancery court] whose presence is necessary for the trial shall be present promptly at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.” Even if you aren’t found in contempt, why start off on the wrong foot with your judge?
- Avoid histrionics. You are not in chancery to impress a jury with your dramatic skills or oratorical flourishes. Most judges I know find that sort of showboating to be off-putting.
- Be respectful of the court. Even when the tide is flowing strongly against you, be courteous and respectful to the judge. When you show disrespect, you are acting contrary to your role as officer of the court. UCCR 1.01 states that “The dignity and respect of the court will be preserved at all times.”
- Be prepared. Have your exhibits ready, your trial notes in order, and your witnesses on hand and briefed. have any statutes or case law in shape to present at the appropriate time.
- Be courteous to opposing counsel. Sometimes this is easier said than done, I know, but make the effort.
- Observe all of the requirements of UCCR 1.01.
Safeguard your reputation with the court as if it were a cache of precious gold. Your reputation with the court is in essence how the judge assesses your truthfulness, reliability, candor, competence and integrity. It is a treasure built up over time in your dealings with the court. Some lawyers squander their treasure by making false excuses or misleading statements to the court, by levelling false accusations against opposing counsel, by missing court appearances, by doing sloppy, unprepared work in pleadings, discovery and trial, and by being unprofessional as spelled out above. Don’t misspend your treasure that way.
Keep your promises. If your word is not your bond, you really should consider finding another line of work. When you tell the judge you are going to do something, do it. And if it becomes genuinely impossible, let the judge know right away. Don’t tell opposing counsel a case is settled unless it is, and don’t make promises you can’t keep or have no intention to keep.
Never even suggest anything improper to a judge. I can not think of any more instantaneous way to destroy — probably irreparably — your credibility with a judge than to make even a suggestion of impropriety. A hint of a quid pro quo, an ex parte suggestion for a favorable ruling or criticism of the other party or attorney, and the like are poison for your reputation with the court.
Your work product speaks volumes about your competence. If your pleadings are sloppily done and make no sense, your arguments are incoherent, and your witnesses make no sense, you have no one to blame but your own sloppy self when the judge turns her nose up at them. Take pride in your work. Make sure it’s right and well-presented. Make a favorable impression on the court. I can assure you that it is a true pleasure to take the bench and try a case that is well-presented by capable lawyers who know what they are doing and have given the court clear pleadings, authority and testimony on point. And I can equally assure you that it is agony to try a case where the lawyers fall considerably short of that mark.
RECIPES FOR DIRECT CONTEMPT
October 3, 2012 § 4 Comments
We visited the various types of contempt and how the court addresses them in a previous post.
Here are some examples of direct criminal contempt that the courts have recognized:
- Foul or threatening language or physical assault. Lamar v. State, 607 So.2d 129 (Miss. 1992). Note that the misconduct in Lamar took place in the foyer of a court room. Also, Varvaris v. State, 512 So.2d 886, 887-88 (Miss. 1987).
- Language insulting to or in ridicule of the court. In re Smith, 926 So.2d 878, 883 (Miss. 2006). Also, Miss. Bar v. Lumumba, 912 So.2d 871, 880-82 (Miss. 2005). See, also UCCR 1.01.
- Outrageous dress or costume may be contemptuous, but only after a warning to correct the offense. 17 Am. Jur. 2d Contempt §56.
- Refusal to answer questions on the witness stand is contemptuous if no privilege applies. Hentz v. State, 496 So.2d 668, 675 (Miss. 1986).
- Disrespectful language in a motion or in argument may be found to be contempt, but if the language is personally insulting to the judge, he should recuse and allow another judge to adjudicate it as constructive criminal contempt. Purvis v. Purvis, 657 So.2d 794, 797 (Miss. 1995).
- Tardiness or failure to appear at the appointed time. Wyssbrod v. Wittjen, 798 So.2d 352 (Miss. 2001). See, also UCCR 1.05.
- Arriving late for a hearing, even though the attorney had a conflict with another court-scheduled matter, where the attorney did not notify the second court of the conflict and request a rescheduling. Alviers v. Bay St. Louis, 576 So.2d 1256, 1257 (Miss. 1991).
- Refusal to attend a court-ordered proceeding without justifiable cause. In re Hampton, 919 So.2d 949, 955 (Miss. 2006).
- Contumacious objections that show a refusal to accept the rulings of the court may be contempt, although it is improper for the court to threaten contempt for a single, timely objection. Young v. State, 679 So.2d 198, 205 (Miss. 1996).
- Refusal to produce documents in violation of a court order to do so, where no provilege applies. Morgan v. Thomas, 448 F.2d 1256 (5th Cir. 1971). Note that this may also be dealt with as civil contempt.
- Drunkenness in the court room that interferes with the court. Neely v. State, 98 Miss. 816, 54 So.2d 315 (1911).
- Subornation of perjury. 17 Am. Jur. 2d Contempt §79. But, see Corr v. State, where a false affidavit filed with the clerk for return of process was held to be indirect contempt.
APPROACHING ZERO TOLERANCE
October 2, 2012 § 7 Comments
If you have gotten the impression that many chancellors are tightening down on the handling of fiduciary matters, it’s not just your imagination or overactive paranoia glands. More and more chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.
There are several reasons for this. One, and perhaps paramount, is that it is the judge’s job. But here are several others:
- There is the case of attorney Michael J. Brown, of Hinds County, who helped fritter away hundreds of thousands of dollars of a ward’s account.
- There is the case of the lawyer in jail in Rankin County who has been unable to account for fiduciary funds, and who will begin serving federal and state sentences therefor as soon as Judge Grant releases him from his civil contempt sentence — which is contingent on his accounting.
- There is the case of another lawyer in Rankin County who refuses to account for fiduciary funds, and who is likewise cooling his heels in the county bastille until he complies.
- There is the case of the lawyer on the coast who committed suicide when the questions started floating about how fiduciary matters in his charge were handled, and the last I heard the missing funds are more than $1.2 million.
The genius of our fiduciary system in Mississippi is that it creates a three-tiered system of protection for the ward or beneficiaries. The fiduciary is bonded (in most cases) and is accountable to the court; the lawyer works with the fiduciary, providing advice, guidance and oversight to see that the law is followed; and the court authorizes actions, demands and approves accounts and inventories, and scrutinizes the actions of both the fiduciary and the ward. Whenever any one tier fails, it is up to the other two to catch and fix the failed part. When judges wink at incompetent legal work in fiduciary matters we are shirking our duty to innocent beneficiaries, creditors and people who are unable to protect their own interests.
It’s not the stuff of movies and detective novels that money is stolen from fiduciary accounts. I have seen it right here in our little backwater, and I am sure it is happening and has happened in yours (not meaning that you live in a backwater).
Fraud and mishandling of funds thrive in the sloppy handling of fiduciary matters. When you leave it up to the fiduciary to go about unaccounted for and unadvised and unsupervised, you are inviting trouble. And chancellors are becoming ever more vigilant and intolerant.
IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?
October 1, 2012 § 5 Comments
Termination of parental rights pursuant to MCA 93-15-103 has long been treated, at least in this chancery district, as an independent cause of action that may be invoked whenever the criteria of 93-15-103(3) are met.
The COA decision in LePori v. Welch (discussed here in a previous post dealing with other points), decided June 26, 2012, though, calls that theory into question.
In his opinion for the court, Judge Maxwell addresses the appellant’s argument that the chancellor failed to address the “substantial erosion” factor set out in 93-15-103(3)(f). He said, beginning in ¶5:
But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:
When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1).
¶6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So. 2d 437, 445 (¶32) (Miss. 2001) … [Emphasis in original text]
The above language is not the actual holding of the case, but it is about as clear a statement that you will find interpreting the intent and purpose of 93-15-103(1), which is the threshold statute for TPR. What Judge Maxwell is saying, in my opinion, is that there is no cause of action for TPR that is independent of an adoption. TPR is done ” … in order for the child to be adopted … ,” in Judge Maxwell’s own words.
I wonder, though, what this language of the statute means in light of that interpretation: ” … and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …” What about where the court finds that adoption is not needed to secure a stable placement? Does that cancel out the TPR action if all the criteria are proven?
My emphatic answer is … I don’t know. What I do know is that nine judges of the COA joined in Judge Maxwell’s opinion, and that one concurred ” … in part and in the result without separate written opinion,” making it 99% unanimous. So the mind of the COA on the subject would appear to be clear.
I also know that this would appear to change the way we have done business in this district, and maybe in yours, too. Stay tuned for further developments.
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