DIAMONDHEAD IN THE ROUGH
August 13, 2012 § 1 Comment
Carolyn and Anthony lived together in Louisiana without benefit of marriage. They purchased a home together in Diamondhead, on the Mississippi gulf coast, which they titled as joint tenants with right of survivorship. They had the idea that they would later marry, move from Louisiana, and take up residence in their Hancock County home.
Anthony paid the entire $274,000 purchase price, along with the utilities, taxes, insurance and property owners association dues. Carolyn testified that she used some of her personal property to furnish the house, and she put up drapes and made other cosmetic improvements.
As things sometimes do, the relationship soured, and Anthony filed a petition in chancery court to partite the property by sale, claiming it was not susceptible to partition in kind. He also asked for an adjustment of equities, since he had made the greater contribution to the acquisition. Carolyn denied that Anthony should have the adjustment, since the parties were on an equal legal footing in relation to the property by virtue of the joint tenancy.
The chancellor found that to award Carolyn any money from the partition sale would be an unjust enrichment to her. He also cited MCA 11-21-9, providing for an adjustment of equities between the parties, and 11-21-33, which deals with owelty. He awarded Anthony 100% of the proceeds of sale of the property.
In a rather brief opinion rendered in the case of Jones v. Graphia, on August 7, 2012, the COA affirmed the chancellor. Judge Griffis, writing for the majority, distinguished cases cited by Carolyn and upheld the chancellor’s adjustment of equities per the statute, citing the appellate court’s limited scope of review.
Judges Carlton and Maxwell wrote dissents that are worth a read, particularly if you do a lot of this kind of work.
To me, the significance of this decision is that it comes in the wake of the Cates v. Swain case decided by the COA on April 17, 2012, and authored by Judge Maxwell. That is the case, you may recall, that held an unmarried, same-gender couple not to have acquired any equitable interest in assets accumulated during the relationship. I posted about the case here.
The obvious distinction between the two cases is that in Cates v. Swain the parties intentionally did not title the real property jointly, while in Jones v. Graphia the property was titled in joint ownership.
Once again, if you are advising unmarried couples or individual parties to such a relationship, the implications of these two cases are clear: if the parties do not formalize their relationship, at least one, and maybe both, will have no legal protection. Jones was protected, as the majority opinion pointed out, in the sense that if Graphia had died she would have been vested with 100% title to the property. The court does not say so, but it is implicit in the opinion that, had Jones made any contribution to the accumulation of equity in the property, she would have been entitled to something in the adjustment of equities. Likewise, since Elizabeth Cates was not on the title, and the parties did not have any enforceable contractual obligation to one another, she had no claim to any interest in the property.
“QUOTE UNQUOTE”
August 10, 2012 § 2 Comments
“The peace of God it is no peace, but strife closed in the sod. Yet let us pray for but one thing — the marvelous peace of God.” — William Alexander Percy
“If we want peace we must work for justice. Justice is the root of peace just as peace is its fruit. Equity demands that the goods of this world be justly distributed; that equal opportunities be provided for all to enjoy the economic and social benefits that the world has to offer; and that we give each person his due. We cannot lull our conscience by giving to others in charity what is in fact due to them in justice. A culture of peace is built on justice.” — Cardinal Paul Poupard
“But let justice roll on like a river, righteousness like a never-failing stream!” — Amos 5:24
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3
August 9, 2012 § Leave a comment
This is the eighth 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 will be 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 #3 …
Use the trial checklists as your template for proof.
Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.
The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”
If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.
How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.
A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.
Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.
As you will see, there are checklists for various issues. Use them and win.
When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.
WHEN DOES RES JUDICATA OPERATE AS A BAR?
August 8, 2012 § 5 Comments
Lawyers from time to time will argue, or try to, that particular relief is barred by the operation of res judicata.
Here’s a succinct statement of the rule:
We recognize that the doctrine of res judicata precludes a party from litigating claims that were raised or could have been raised in the original action. Howard v. Howard, 968 So. 2d 961, 973 (¶27) (Miss. Ct. App. 2007). Four identities must be present before a subsequent action may be dismissed on the basis of res judicata:
(1) identity of the subject matter of the original action when compared with the action . . . sought to be precluded; (2) identity of underlying facts and circumstances upon which a claim is asserted and relief sought in the two actions; (3) identity of the parties to the two actions, and identity met where a party to the one action was in privity with a party to the other; and (4) identity of the quality or character of a person against whom the claim is made.
Id. “If the four identities are present, a party may not raise a claim in a subsequent action.” Id. “This is true regardless of whether all grounds for possible recovery were litigated or asserted in the prior action, as long as those grounds were available to a party and should have been asserted.” Id. (citation omitted).
Rogers v. Rogers, COA, July 24, 2012, ¶26, fn 2.
Res judicata has no application in a modification case involving alimony or child support, since those matters are never truly final, and are always subject to modification based on a change of circumstances. See Campbell v. Campbell, 357 So.2d 129, 130 (Miss. 1978); Austin v. Austin, 91 So.2d 1000, 1005 (Miss. App. 2007).
STUNG BY ATTORNEY’S FEES
August 7, 2012 § 2 Comments
The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.
The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.
The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:
¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:
There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).
See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).
¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”
¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).
¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.
The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
DISMISSAL FOR FAILURE TO PROSECUTE
August 6, 2012 § Leave a comment
MRCP 41(b) says, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Except for a few circumstances spelled out in the rule, such a dismissal operates as an adjudication on the merits, which means that it is with prejudice and res judicata.
In the COA case of Wing v. Wing, decided July 17, 2012, the court upheld a chancellor’s decision dismissing an action for failure to prosecute.
At the trial level, a conservatorship had been established for Loleta Wing in 2005, on petition of Todd and Tammy Kinney, grandchildren of Loleta. As part of their action, they sued Loleta’s son, Jimmy Wing, who was co-trustee and a co-beneficiary of a Wing family trust, for accounting, claiming he had abused his confidential relationship with Loleta. A couple of months later they dismissed the suit.
After Loleta died in November, 2007, Jimmy submitted an accounting to Todd and Tammy for the remaining trust assets. They responded with a suit in February, 2008, charging that Jimmy had used his confidential relationship with Loleta to persuade her to transfer assets to him, and that he improperly used the trust for his own benefit. They also sought an injunction, and after a hearing, the court, on February 28, 2008, froze all assets of the trust.
Jimmy filed responsive pleadings, and the parties entered into an agreed preliminary injunction. There ensued informal exchanges of information and an informal accounting by Jimmy, until December 21, 2010, when Jimmy filed a motion to dismiss for failure to prosecute. The chancellor dismissed the action pursuant to MRCP 41(b), and Todd and Tammy appealed.
Writing for the court, Judge Carlton said:
¶14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiff’s failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So. 3d 721, 728 (¶22) (Miss. 2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiff’s conduct is dilatory focuses “on the plaintiff’s conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). [Fn 7] Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So. 2d at 880 (¶50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.
Fn 7. See also Holder v. Orange Grove 7 Med. Specialties, P.A., 54 So. 3d 192, 198 (¶22) (Miss. 2010) (“We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).
The court considered whether the trial judge had abused his discretion, and whether lesser sanctions would have been appropriate, and rejected both arguments. The COA’s analysis of the factors applicable in deciding whether there has been a failure to prosecute is something you should take the time to read.
Many family law cases seem to get onto a side track and fall into inaction. When they involve the best interest of children it’s not likely that the trial court would consider dismissal, but, as Wing points out, there are lesser sanctions for failure to move your case forward that can impact your client’s and even your pocketbook, as well as your ability to be effective in representing your client.
I use scheduling orders in all contested cases to move things along, and I impose an expiration date on temporary orders as an incentive not to dawdle with divorces. I suppose that “for failure of the plaintiff to comply with … any order of the court …” such as a scheduling order, a plaintiff could jeopardize his or her case by inaction.
Wing is a case you need to read, not only to understand your own duty to move your cases forward, but also to see how you can use MRCP 41(b) as a defensive weapon. Remember, that dismissal is with prejudice, by the express terms of the rule.
While we’re talking about dismissals, remember that if you receive a clerk’s notice of dismissal for inactivity in excess of a year, per MRCP 41(d), you need to take substantive action immediately, or else your case will be dismissed. A letter to the clerk or a “Notice to Keep Case on Active Docket” or the like just won’t cut it.
SCENE IN MISSISSIPPI
August 3, 2012 § 9 Comments
Where in Mississippi is this?
And a close-up …
[Thanks to atty Marcus Evans]
SETTING ASIDE A DEFAULT JUDGMENT
August 2, 2012 § Leave a comment
MRCP 55(c) allows the trial judge to set aside a default judgment “for good cause shown.” MRCP 60(b) authorizes the judge to set aside a default for “mistake, newly discovered evidence, fraud, void judgment, satisfaction, or other reasons the court finds to justify setting it aside.”
In the case of American States Insurance Co. v. Rogilio, 10 So.3d 463, 467 (Miss. 2009), the court established a three-prong test for trial courts to apply in determining whether to set aside a judgment:
(1) the nature and legitimacy of a defendant’s reasons for default (i.e., whether a defendant has good cause for default), (2) whether the defendant has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice that a plaintiff would suffer if default is set aside.
In the COA case of Olive v. Malouf, decided July 24, 2012, the trial judge had denied Olive’s motion to set aside the default judgment entered against him. Judge Roberts, writing for the COA, addressed each of the American Standard elements:
- The nature and legitimacy of a defendant’s reasons for default. In support of his motion, Olive argued only that he did not know where to file or send a copy of a responsive pleading, despite the fact that the name and address of opposing counsel was clearly stated on the complaint. Olive offered nothing else to explain his failure to file an answer. “¶11. The Mississippi Supreme Court has declined to set aside a default judgment where ‘[n]othing in the record suggests that [a defendant] was confused about the meaning and effect of the papers served upon him,’ and there was no indication that the defendant was ‘confused about the fact that he had been sued and should respond.’ Guar. Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 388 (Miss. 1987).”
- Whether the defendant has a colorable defense to the merits of the claim. Olive presented nothing by way of affidavit or other sworn form of evidence that he had any meritorious defense. A party does not meet the burden of MRCP 60(b) by relying on unsubstantiated allegations that a meritorious defense exists. American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545, 554 (Miss.App. 2000). “Despite the general preference that litigants have a trial on the merits, a defendant must still ‘set forth[,] in affidavit form[,] the nature and substance of [his] defense.” Olive at ¶14, citing H & W Transfer & Cartage Service v. Griffin, 511 So.2d 895, 899 (Miss. 1987). This is the prong that the appellate courts have held to carry the most weight.
- The nature and extent of prejudice that a plaintiff would suffer if default is set aside. Olive presented nothing in support of this element, and the court found that Malouf would suffer prejuddice, especially considering that he had prevailed on the other two prongs.
To prevail on a Rule 55(c) or 60(b) argument, then, you will have to do some groundwork to support your claim. Mere allegations will not carry the day. You will have to file affidavits and address each prong of the American Standard test. If you fail to do so, you won’t prevail on appeal.
DEFINING THE SCOPE OF TRIM
August 1, 2012 § 2 Comments
You’ve read here before about the case of Trim v. Trim and its ramifications for family law practitioners. Trim is the MSSC case holding that intentional filing of a substantially false UCCR 8.05 financial statement constitutes a fraud on the court, so that any judgment based on it is vulnerable to being set aside any time.
In the case of Rogers v. Rogers, decided July 24, 2012, the COA confronted the question of intentionality and exactly how substantial the falsehood needs to be to warrant setting aside the prior judgment.
At trial in 2009, Charles Rogers submitted a financial statement that showed his monthly adjusted gross income as $4,651.71. The court awarded child support and alimony based on that figure.
Later, in a 2010 contempt proceeding brought by his ex-wife Julianne, Charles disclosed in discovery that his gross income was in excess of $88,000 a year, which would produce considerably greater adjusted gross income.
The chancellor found that the discrepancy was “proof of a gross misrepresentation and fraud” upon the court, and revised the final judgment of divorce to increase both the child support and alimony.
On appeal, the COA noted that in his 2009 trial testimony Charles had expressly testified that his yearly gross income was $88,000, that the $4,400 figure represented two weeks’ pay, and he had been asked about it in detail both on direct and under cross examination. At the contempt trial, Charles steadfastly stood by his position that he had not intentionally failed to disclose or falsified the financial information.
Judge Carlton recited the well-known Mississippi rule on establishing the elements of fraud:
¶18. The general rule is well settled that fraud will not be presumed but must be affirmatively proven. Taft v. Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (Miss. 1965). The Mississippi Supreme Court has held that in order to establish fraud, the burden is on the proponent to prove the following elements:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.
Koury v. Ready, 911 So. 2d 441, 445 (¶13) (Miss. 2005) (citing Mabus v. St. James Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)). Additionally, “fraud . . . must be proved with clear and convincing evidence.” Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977). We have recognized that “[c]lear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005) (citation omitted).
¶19. To vacate a decree due to fraud, the supreme court, in Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992), listed the four necessary requirements that must be met:
(1) that the facts constituting the fraud, accident, mistake[,] or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.
Applying the law of fraud to the case at hand, Judge Carlton concluded that the elements of fraud had not been proven, and that the chancellor’s judgment essentially setting aside the original judgment was, therefore, in error. Her opinion distinguished Trim in this way:
¶24. Julianne cites Trim v. Trim, 33 So. 3d 471 (Miss. 2010), in support of her argument that Charles’s inaccurate Rule 8.05 statement perpetrated a fraud upon the court. In Trim, George Trim submitted his Rule 8.05 statement listing the value of his company’s stock at $100,000. Id. at 473 (¶4). George and his ex-wife, Lisa, entered into a property-settlement agreement, which the chancellor later ratified, based on their assets and liabilities disclosed in their Rule 8.05 statements. Id. Lisa later discovered that George had misrepresented his stock value in his Rule 8.05 statement, and filed suit against him for fraudulent misrepresentation. Lisa’s expert valued George’s stock at $694,000 at the time of George and Lisa’s divorce. Id. at 474 (¶4). On appeal, the Trim court held that George’s intentional filing of a substantially false Rule 8.05 statement constitutes a fraud on the court, noting the chancellor’s finding that George’s Rule 8.05 statement drastically undervalued a major marital asset. Id. at 478 (¶17).
¶25. The case before us differs from Trim in that the record shows that Charles testified during trial and explained that his Rule 8.05 submission reflected a two-week pay period. In applying the standard for proving fraud to the facts and record before us, we cannot agree that Julianne met her burden of proving fraud by clear and convincing evidence. See Hamilton, 352 So. 2d at 831. Although Charles’s Rule 8.05 statement incorrectly reflected his monthly salary, the record shows that he explained the discrepancy several times in his trial testimony. As a result, we find that the chancellor erred in considering Charles’s Rule 8.05 statement only, and not also his trial testimony, in determining that Charles’s misrepresentation of his income rose to the level of fraud. In her July 6, 2010 judgment, the chancellor erroneously found that Julianne proved by clear and convincing evidence that Charles perpetrated a fraud upon the court. Therefore, the chancellor erred in vacating the prior decree and revising the final divorce decree by increasing the alimony award. Accordingly, we reverse and set aside the revised final judgment and reinstate the original divorce decree. We also reverse and render the increased award of $1,000 in rehabilitative alimony for thirty-six months, which was based upon the erroneous finding of fraud on the court. Since the record does not support a finding of fraud by clear and convincing evidence, we reinstate the chancellor’s original divorce decree. See Manning, 594 So. 2d at 1167; Shaeffer v. Shaeffer, 370 So. 2d 240, 242 (Miss. 1979).
So, unless and until the MSSC chooses to clarify the matter further, you will have to prove all of the elements of fraud by clear and convincing evidence in order to invoke Trim relief. Proof of discrepancies and oversights in 8.05 statements will not be enough to do the job.
CHOOSING NOT TO PLAY CATCH-UP
July 31, 2012 § 6 Comments
This is not a political post, I swear. You who have read this blog for any length of time should be aware that I eschew politics here.
But this is a post about a subject that has reverberated in Mississippi politics for quite some time.
The issue is education, and, specifically, early childhood education, as in pre-k.
TIME magazine on July 27, 2012, published an article online entitled “Mississipi Learning: Why the State’s Students Start Behind — and Stay Behind.” I encourage you to read it.
Some of the article’s major points:
- Mississippi has the highest rate of childhood poverty in the country and test scores that are consistently among the nation’s worst.
- Neighboring states have made great strides in early education, but Mississippi remains the only state in the South — and just one of 11 in the country — that doesn’t fund any pre-k programs.
- Researchers have found that high-quality pre-k programs can improve long-term outcomes for low-income children and help close an achievement gap for minorities that tends to worsen over time. Being able to stand in line, listen to directions or make eye contact with the teacher play in an important role when it comes time to try to teach kids how to read and write.
- Failure to prepare children for kindergarten or first grade costs the state a lot of money. One of every 14 kindergarteners and one of every 15 first-graders in Mississippi repeated the school year in 2008, the most recent year for which statistics are available. From 1999 to 2008, the state spent $383 million on children who had to repeat kindergarten or first grade, according to the Southern Education Foundation. who repeat one or more grades are much more likely than their classmates to drop out of school, decades of research have shown.
- The state’s academic results, which trail other states’ significantly, don’t improve as the children grow older. In 2011, the state’s fourth-graders were outperformed on the reading portion of the National Assessment of Educational Progress by their peers in 44 states. In math, they finished second to last in the nation, ahead only of fourth-graders in the District of Columbia.
- Just 61 percent of Mississippi’s students graduate from high school on time — more than 10 percentage points below the national average.
- More than 75 percent of young Mississippi residents are ineligible to join the military because, among other reasons, they failed to graduate from high school on time.
Whether to fund early-childhood education in Mississippi is an issue wrapped up in budgetary, educational, political, and socio-economic considerations. Some legislators believe the state can not bear the cost. Some are not persuaded by the data that it would be beneficial. Some are motivated negatively by the political repercussions they believe they would feel back home. A few are motivated by lack of interest in any further funding for public education.
As a chancellor, with Youth Court responsibilities in Clarke County, I see the crippling cycle of poverty and poor education that keeps an underclass trapped in a perpetual dead end. We who are more fortunate tend to look down our noses and sniff that “those people” can lift themselves up by their bootstraps if they will only try. But a child who shows up for the first day of kindergarten not knowing her colors, or his street address, or his letters, or how to interact in a disciplined fashion with other children, has miles to go before ever reaching the starting line. And quite often those children come from homes in which there is a heritage of generation after generation in the same circumstances.
The results I see in my court include chronic unemployment and underemployment, malnourished and neglected children, reliance on costly government programs that often have dubious success, inability to pay child support, rampant teen pregnancy and the resulting reliance on the dole, school dropouts, child abuse, domestic violence, substance abuse, shattered family structure, subhuman living conditions, and on and on in a panoply of human misery. As chancellor charged with the responsibility as superior guardian of children and incompetents, I can not overlook what I see.
I am not saying that throwing more money at this problem would fix it. I am saying that the overwhelming evidence from other states is that early childhood education pays dividends. Until we get moving, we will fall further and further behind.
A society is only as strong as its weakest members. When we reach out and give a hand up, we all benefit.
