“Quote Unquote”

February 2, 2018 § 2 Comments

“They will all promise every man, woman, and child in the country whatever he, she, or it wants. They’ll all be roving the land looking for chances to make the rich poor, to remedy the irremediable, to succor the unsuccorable, to unscramble the unscrambleable, to dephlogisticate the undephlogisticable. They will all be curing warts by saying words over them, and paying off the national debt with money no one will have to earn. When one of them demonstrates that twice two is five, another will prove that it is six, six and a half, ten, twenty, etc. In brief, they will divest themselves of their character as sensible , candid, and truthful men, and become simply candidates for office, bent only on collaring votes. They will all know by then, even supposing that some of them don’t know it now, that votes are collared under democracy, not by talking sense, but by talking nonsense, and they will apply themselves to the job with a hearty yo-heave-ho. Most of them, before the uproar is over, will actually convince themselves. The winner will be whoever promises the most with the least probability of delivering anything.”  —  H.L. Mencken

“I always voted at my party’s call,
And I never thought of thinking for myself at all.”  —  W. S. Gilbert, H. M. S. Pinafore

“We’d all like t’vote fer th’best man, but he’s never a candidate.”  —  Kin Hubbard

 

Contempt: How Much is Too Much?

January 31, 2018 § Leave a comment

Amaria and David Vassar became embroiled in a divorce in 2015. Amaria was required by a temporary order to pay the mortgage notes on the marital residence that was jointly owned by them, but only Amaria was obligated on the note, apparently due to David’s poor credit history.

Instead of paying the note as ordered, Amaria quit paying it and cut off the utilities to the house. By the time of the final hearing, Amaria had amassed an arrearage in mortgage payments of nearly $13,000.

In his final ruling on the divorce issues, the chancellor found Amaria in civil contempt and ordered that she be incarcerated until she pay the arrearage. Six days later, Amaria filed a motion for release from jail on the basis that the proof at trial had shown she was unable to pay it. That motion appears to have been denied. Twenty-one days later, she obtained new counsel and filed yet another motion for release based on the same grounds and further informing the court that she had military orders to report for duty. The motion again was unsuccessful. Finally, after she had been incarcerated more than 40 days, Amaria filed for bankruptcy on the mortgage note, and the chancellor ordered her to be released.

On appeal, Amaria challenged the incarceration order as well as other aspects of the court’s ruling. In Vassar v. Vasar, an October 17, 2017, ruling, the COA reversed and remanded. Judge Wilson wrote the majority opinion:

¶47. Amaria also argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the marital home. Amaria does not contest the chancellor’s finding of contempt—only the order of incarceration. Amaria is no longer incarcerated. She was released after she spent forty-seven days in jail and filed for bankruptcy. Nonetheless, she argues that we should review the issue under the “capable of repetition yet evading review” exception to the mootness doctrine. We agree that the issue is appropriate to review and that the chancellor erred by incarcerating Amaria given her clear inability to purge herself of contempt by paying the mortgage arrearage.

¶48. “Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree.” Riser v. Peterson, 566 So. 2d 210, 211 (Miss. 1990). In Riser, the Mississippi Supreme Court stated: “For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration.” Id. at 212 (emphasis added; capitalization omitted).

¶49. Here, Amaria concedes that she was in contempt because she violated the chancery court’s temporary order requiring her to pay the mortgage and utilities on the marital home. Amaria’s only argument is that she should not have been incarcerated because the record is
clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage arrearage that the chancellor ordered her to pay as a condition of her release. We agree. Under Riser, even if inability to pay is not a defense to the underlying contempt, it is always a continuing defense to incarceration. The evidence was clear that on July 1, 2016, Amaria could not pay $12,997.65 or anything close to that amount. The chancellor therefore erred by ordering Amaria to be incarcerated until such time as she paid that amount.

¶50. Amaria’s release from jail after forty-seven days arguably renders moot her challenge to her incarceration. [Fn omitted] However, we may address an issue that is otherwise moot when “the following elements combine: (1) The challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) There was a reasonable expectation that the same complaining party would be subject to the same action again.” Strong v. Bostick, 420 So. 2d 1356, 1359 (Miss. 1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This is known as the “capable of repetition yet evading review” exception to the mootness doctrine. Id. The United States Supreme Court has applied this exception in a case in which a father challenged his incarceration for failure to pay child support but was released before his case reached the Court. See Turner v. Rogers, 564 U.S. 431, 439-41 (2011); see also Koestler v. Koestler, 976 So. 2d 372, 379-80 (¶¶19-23) (Miss. Ct. App. 2008) (holding that an appeal from an involuntary civil commitment fit within the exception even though the individual had been discharged).

¶51. Although the facts of Turner are distinguishable in some respects, we agree with Amaria that this exception to the mootness doctrine is applicable. Amaria remained in jail for forty-seven days until she was released for reasons that are not explained in the record. She was never able to comply with the originally stated condition for her release—payment of the mortgage arrearage. In addition, the final judgment imposed a series of financial obligations that were beyond her ability to pay. While we have reversed and remanded these obligations for reconsideration, it is appropriate to address the order of incarceration because it is capable of repetition in the future and could again result in a period of incarceration too short for full litigation of the issue.

Inability to pay, then, is both a defense to the finding of contempt, and to the sentence of incarceration. As to the latter, it is a continuing defense, meaning that it may be asserted as often as the condition persists, as Amaria did in this case. The US Supreme Court’s Turner v. Rogers case cited above, is instructive on how incarceration relates to inability to pay.

Only caveat is that the defense of inability to pay is ticklishly difficult to prove under existing Mississippi case law. Check out the many cases cited in Professor Bell’s book (2nd Ed.) at page 490, Fns 133-135. I suggest that the defense of inability vis a vis contempt demands stronger proof than the defense to incarceration or continued incarceration. I know of no Mississippi cases to support this assertion, but I think Turner v. Rogers supports it.

Attorney’s Fees as Punitive Damages

January 30, 2018 § Leave a comment

May a chancellor award attorney’s fees in lieu of punitive damages?

That question was before the COA in the case of Cronier, et al. v. ALR Partners, et al., handed down December 12, 2017.

In that case, the Rainwaters (ALR Partners) sued for adverse possession of 9.75, naming the Croniers as defendants. Allen Cronier claimed ownership of the property in dispute. As the matter degenerated from discussion to litigation, Cronier erected fences and gates cutting off the Rainwaterses’ access to the contested property. Cronier even conveyed the disputed property to his twelve-year-old granddaughter, retaining a life estate. Following a trial the chancellor found in favor of the Rainwater claim of adverse possession, ordered Cronier to remove all of the fencing and gates from the property, and ordered Cronier to pay the Rainwaterses’ attorney’s fees and court costs. Cronier appealed, raising several issues, among which was that the court erred in awarding attorney’s fees.

The COA reversed and remanded only for the court to state specifically whether the award of attorney’s fees in lieu of punitive damages. Judge Barnes wrote the 9-1 decision, Judge Tindell concurring and dissenting in part:

¶35. The chancellor ordered the Croniers to pay the Rainwaterses’ attorney fees and court costs because the “actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses’ rights.” Additionally, the chancellor stated that Allen “knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim” to the disputed parcel.

¶36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses’ adverse possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.

¶37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.

¶38. Mississippi follows the American rule for awards of attorney fees. “[A]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (¶16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). “[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.” Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003).

¶39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the “Defendants’ reckless disregard of the Plaintiffs’ rights in this case”). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she
could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.

So, the award of attorney’s fees will stand if on remand the chancellor finds that Cronier’s conduct was with actual malice, justifying punitive damages, and she specifies that the fee award is in lieu of punitive damages.

The language quoted above is a nice summary of the law of attorney-fee awards in Mississippi. You can recite pretty readily, I am sure, some other avenues for fee awards in chancery, among them contempt, divorce, and as a sanction for discovery misconduct.

The Primary Custody Myth

January 29, 2018 § 5 Comments

Many custody agreements provide for one party to have “primary physical custody.” Many judgments incorporate similar language. You will find the term sprinkled throughout appellate decisions.

The fact is, though, there is no such thing as primary custody.

I posted about the misuse of the term, and how it can hurt your client, in an early post ‘way back in 2010.

A recent COA case illustrates just how the concept can lead to heartbreak for at least one of the parties. Judge Fair, writing for a unanimous court in Gaddis v. Wilkerson, decided January 9, 2018, laid out the law on the point:

¶7. Richard and Tracey have shared joint legal and physical custody of Logan since the original divorce decree. Joint physical custody does not require equal time with each parent, but it does require that the parents have “significant periods of physical custody . . . to assure a child of frequent and continuing contact with both parents.” Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).

¶8. Tracey contends that the chancellor erred when he modified the schedule within the custody agreement. At trial and on appeal, both parties have incorrectly stated that Tracey has primary physical custody of Logan and that Richard has visitation. The original custody agreement, the 2013 modified custody agreement, and the appealed 2016 modified custody agreement all state that Tracey and Richard are both custodial parents – an important distinction for Richard. Neither party is categorized as having “primary physical custody,” nor is either party awarded visitation. Further our supreme court has emphasized that the term “primary physical custody” is not specified in section 93-5-24 and “cannot act to transform such express ‘joint physical custody’ into de facto sole physical custody with liberal visitation.” Porter v. Porter, 23 So. 3d 438, 446-47 (¶22) (Miss. 2009).

In other words, if you create a joint legal custody agreement, the court will enforce it as such. Even if Tracey had been expressly designated as the one with “primary custody,” Porter holds that the term does nothing to change the effect of joint physical custody. I suggest that the best practice is to banish the term from your documents.

Reprise: The Role of Chancery in the Wrongful Death Case

January 26, 2018 § Leave a comment

Reprise replays posts from the past that you might find useful today.

Wrongful Death and Chancery Court

March 6, 2014 § 1 Comment

If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.

The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.

What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.

There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:

¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:

Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.

Estate.

¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.

Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.

¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.

Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.

¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *

Minors.

¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]

Determination of wrongful death beneficiaries.

¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]

Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.

One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.

From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.

Pending Legislation that Might Impact Your Chancery Practice

January 24, 2018 § 3 Comments

Every year the judges receive updates from the Administrative Office of Courts (AOC) of pending litigation that could affect the judiciary. This year’s first roll-out consists of 49 pages. That may not be a record, but it impresses me as more than usual.

Here is a list of introduced bills that I believe may affect chancery court, based solely on the descriptive statement in the material provided to us. I have not read these bills because many of them will fall by the wayside as the session rumbles along. Some may not even pertain to chancery.

You can access links to the texts of these bills at this link.

HB 132       Adverse possession cases; require losing party to pay court costs and attorney’s fees.

HB 238       Mineral interests; revert to surface owner after certain period of time.

HB 270       PERS; no benefits to retiree while serving as consultant or advisor to state. (Will this affect Senior Judges?)

HB 277       Power of attorney; authorize to become effective upon a future event.

HB 282       Child support arrearage; require electronic house arrest as punishment for contempt.

HB 419       Mental Health Courts; authorize to be established throughout the state.

HB 434       Authorize AOC to fund mental health courts

HB 471       Create task force to address the disparity of African-American males in the judicial system.

HB 528       Uniform Partition of Heir Property Act.

HB 546       Require possessor to notify chancery clerk before title vests by adverse possession.

HB 548       Revise Landlord-tenant law re non-payment of rent.

HB 549       Authorize cemeteries to acquire a convenient right-of-way for relatives.

HB 550       Authorize jointly-owned real property to be sold by a realtor.

HB 554       Require chancery clerks to maintain a will registry.

HB 579       Require chance for borrowers to modify loans before foreclosure.

HB 606       Previously-married applicant must provide divorce or annulment judgment for marriage license.

HB 609       Contracts must be written in large print.

HB 632       Courts prohibited from requiring identification.

HB 648       Chancery court may commit certain persons to a mental facility.

HB 671       Arbitration clauses nonbinding in certain contracts.

HB 674       Chancery clerk to remove SSN from deeds.

HB 681       Revise home study and residence requirements in adoptions.

HB 692       Abolish the tort of alienation of affection.

HB 762       Allow opt-out of arbitration in certain consumer cases.

HB 777       Revise certain evidentiary standards.

HB 797       Increase value of homestead exemption.

HB 801       Allow emergency placement of children in home of relative.

HB 810       Clarify service of process on in-state charities (Statutory revision of MRCP 4?)

HB 908       Revise appeals from domestic abuse protection orders (DAPO’s).

HB 913       Add a chancellor to the Third District.

HB 930       Require continued grandparent visitation rights when visitation unreasonably withheld.

HB 962       Revise requirements to file petition for grandparent visitation rights.

HB 1002     Repeal adverse possession.

HB 1022     Require recorded instruments to be in English.

HB 1081     Clarify venue for nonresident corporations.

HB 1084     Terminate parental rights for children conceived of rape.

HB 1090     Revise deadline for recording deed when deadline occurs on a weekend.

HB 1092     Restrict certain technologies from accessing personal communications and information.

HB 1151     Revise withholding and payment of child support.

HB 1169     Define personal property.

HB 1170     Authorize chancery court to award sibling visitation.

HB 1186     Owner of separate, nonproducing mineral interest liable for portion of ad valorem taxes.

HB 1218     Civil actions against real estate appraisers are barred.

HB 1231     Establish fundamental right to direct upbringing of children (parental rights).

HB 1237     Suspend child support obligation during incarceration.

HB 1245     Court may assess costs against dismissed party.

HB 1281     Same as HB 1084

HB 1287     Revise grounds for TPR.

HB 1291     Limitations on imprisonment for contempt for non-payment of child support.

HB 1292     Authorize debtor’s prison for non-payment of fines, fees, and assessments.

HB 1293     Revise power of attorney delegating care and custody of children.

HB 1296     Additional chancellor for the Tenth District.

HB 1300     Director may not withhold admittance of patient with mental commitment order.

HB 1308     Power of attorney exception for certain designation of spouses.

HB 1320     Revise fees for successful paternity action.

HB 1340     Add separation as 13th ground for divorce.

HB 1410     Revise factors for award of child support.

HB 1440     Require DHS recipients who receive child support to provide list of expenses.

HB 1446     Make child advocacy center information confidential.

HB 1465     Establish domestic abuse court program.

SB 2044     Expand authority of Chief Justice to appoint special judges.

SB 2067     Failure to pay GAL fees enforced as any other civil debt.

SB 2232     Allow protection of pets in a DAPO.

SB 2246     Revise landlord-tenant law.

SB 2317     Retired judges may perform marriages and obtain a free pistol license.

SB 2347     Court may order disbursement of ward’s funds under certain circumstances.

SB 2348     Court may waive annual accounting in guardianships under certain circumstances.

SB 2392     Same as HB 471.

SB 2423     Clarify right of parent to nominate GAL in a TPR case and clarify the fictive kin disposition alternative.

SB 2473     Revise the landlord-tenant act to give more protection to landlords.

SB 2493     Establish the State Truth Commission.

SB 2508     Revise definition of personal property.

SB 2522     Revise guidelines for child support.

SB 2542     Allow chancellors to increase child support based on financial ability of parties.

SB 2544     Expand authority of Chief Justice to appoint special judges.

SB 2557     Revise age of majority.

SB 2617     Create civil and criminal liability for unlawful disclosure or promotion of “intimate visual material.”

SB 2620     Bona fide separation as ground for divorce.

SB 2657     Same as HB 548.

SB 2662     Statute of limitations for actions re real estate appraisals.

SB 2682     Require birth certificates to show biological parent as well as spouse.

SB 2685     Prohibit noncompete clauses in physician contracts.

SB 2765     Allow third-party visitation in certain circumstances.

SB 2782     Revise parties entitled to notice in muniment of title.

SB 2802     Prohibit application of foreign law in courts.

SB 2809     Allow administrative suspension of child support for incarceration longer than 180 days.

False Pleadings

January 23, 2018 § 2 Comments

In case you hadn’t noticed, MRCP 11(a) requires every pleading to be signed by one of the attorneys of record. But it doesn’t stop there. It goes on to say that …

“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

R11(b) provides sanctions for non-compliance.

The Advisory Committee Note says that, “Good faith and professional responsibility are the bases of Rule 11.” And it points to R8 pertaining to general denials, which is expressly subject to R11, “meaning only when counsel can in good faith fairly deny all the averments in the adverse pleading should he do so.”

So how do the following comport with R11?

  • Attorney prepares and files an affidavit of diligent inquiry stating that the affiant is the sole heir of the decedent. The attorney is relying solely on the word of the affiant-client. Turns out that the affiant has two sisters in another state.
  • Attorney files an affidavit on behalf of the client taking the client’s word that she looked everywhere for her daughter to take custody of her child, and the daughter is not to be found in Mississippi. A simple Facebook search would have located the daughter in Gulfport.
  • Attorney files a verified application for injunction swearing that efforts have been made to give notice, but that notice should not be required. On inquiry by the judge it is disclosed that counsel has been in discussions about the matter with an attorney representing the opposing party, and that attorney’s office is directly across the street from the courthouse.
  • Attorney signs off on a divorce complaint alleging HCIT and adultery knowing from interviews with the client that there is not enough evidence to support either ground.

If good faith and professional responsibility are the fundamental considerations behind R11, then I think it requires more than taking your client’s word for it and filing pleadings that prove to be wrong. Notice that I said wrong, and not fraudulent. But that’s a thin line.

Restrictions on Visitation

January 22, 2018 § Leave a comment

Chancery courts are frequently called upon to limit a parent’s visitation with a child, usually because that parent has had limited contact with the child up to that point. Aside from the fact that the proposed solution only seems to add to the distance between parent and child, what does Mississippi law require in such a situation?

The recent COA decision in Michael v. Smith, decided January 9, 2018, includes some helpful information on point. Judge

¶25. Here … there is no indication that standard visitation would be detrimental to the child. … The chancellor awarded Michael overnight visitation and further awarded standard summer- and holiday-visitation privileges. While the chancellor did not place the same restrictions at issue in Fields, he did in fact restrict Michael’s visitation, as Michael’s weekend visitations did not include Friday.

¶26. “Except in unusual circumstances, a noncustodial parent is entitled to unrestricted standard or liberal visitation.” Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005) (citing Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Standard visitation includes “two weekends a month until Sunday afternoon and at least five weeks of summer visitation[,] plus some holiday visitation.” Id. (citing Messer v. Messer, 850 So. 2d 161, 167 (¶22) (Miss. Ct. App. 2003); [Fields v.] Fields, 830 So. 2d at 1269 (¶12); Chalk v. Lentz, 744 So. 2d 789, 792 (¶9) (Miss. Ct. App. 1999)). “Awarding less is an abuse of discretion unless there is concrete proof of actual harm to a child.” Id. “Appropriate visitation restrictions often relate to abusive behavior, drug or alcohol abuse, or mental illness.” Id. at § 5.08[4].

¶27. Here, there is no evidence of actual harm to E.M.S., nor is there evidence of abusive behavior, drug or alcohol abuse, or mental illness by Michael. Instead, the chancellor found Michael’s lack of bonding with E.M.S. as the reason to restrict Michael’s visitation. However, such restriction seems counterproductive. Indeed, it is unclear how limiting visitation between Michael and E.M.S. would strengthen the parent-child bond. Moreover, the record shows that at the time of the amended judgment, Michael had been “bonding” with E.M.S. for at least four hours per week for almost one year.

¶28. “Our courts have adopted a policy of maintaining relationships between parents and their children even though the parent may be non-custodial.” Fields, 830 So. 2d at 1267 (¶6). The best interests of the minor child should be the paramount consideration . . . while respecting the rights of the noncustodial parent and the objective of creating an environment conducive to developing as close and loving a relationship as possible between parent and child. Bell on Mississippi Family Law at § 5.07[1] (quoting Chalk, 744 So. 2d at 792 (¶9)).

¶29. “[A]bsent evidence that the child [would be] harmed by standard visitation, the chancellor may not impose limitations on the visitation privileges of the non[-]custodial parent.” Fields, 830 So. 2d at 1268 (¶8). Here, as in Fields, there is no evidence to support the chancellor’s restrictions on Michael’s visitation with E.M.S. See id. at 1269 (¶12). Moreover, there is no evidence that E.M.S. would be harmed by standard visitation. Accordingly, we find the chancellor abused his discretion in restricting Michael’s visitation, and reverse and remand with instructions to award Michael standard visitation with E.M.S., to include Fridays.

If you’re looking to limit visitation, you’ve got to have evidence that amounts to concrete proof of harm to the child. That will often relate to abusive behavior, drug or alcohol abuse, or mental illness. It’s not enough to suggest that the child will suffer.

Also, if it is necessary to build a relationship, I suggest you ask the court to graduate the visitation schedule over a reasonable period, building toward full, standard visitation. If you will notice above, at ¶27, the court noted that Michael had gone through just that sort of familiarization period. In your case, give some thought to what would be reasonable and offer a proposed visitation schedule in writing through your client’s testimony. Your client should be prepared to testify in defense of the proposal, and why it is the way it is. In making a decision, the judge will decide how reasonably to graduate it, and the length of time required, which will depend on the facts of the case, but you should not expect it to be a lengthy, drawn-out process.

Judge Greenlee, joined by Irving and Carlton, wrote a spirited dissent arguing that the chancellor did not abuse his discretion and that the COA should not substitute its judgment for that of the chancellor.

Idling is the Devil’s Workshop

January 19, 2018 § 2 Comments

Some time in November of last year, I began to notice vehicles parked outside the courthouse, their engines idling. People apparently were leaving their car engines running while they ran into the courthouse to conduct some brief (I suppose) business. I would say on average I observed this phenomenon once a day up to Christmas.

It would have been more or less understandable if the perpetrators were suffering through some of our more recent sub-zero weather, but before Christmas the weather was mostly balmy.

At the time, I wrote it off as simply a silly thing to do.  Since then, however, I have discovered that there are some legal implications. Consider MCA 63-3-909:

No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, and, when standing upon any perceptible grade, without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway.

MCA 63-3-201 makes failure to comply with the above a misdemeanor.

The illegality of unattended idling vehicles came to my attention recently when I read of Mississippians in Jackson and Biloxi being ticketed for the offense. One of those cases was on private property.

Now, I am not privy to the legislature’s thinking when it decided to adopt this measure, but I am willing to bet that environmental concerns were somewhere near the bottom of the top-ten reasons behind it. Most likely it was the product of the liability insurance lobby trying to address res ipsa loquitur and per-se-negligence liability insurance implications. The law is in the chapter on “Rules of the Road” — not the private driveway, and refers to the “curb” and “side of the highway,” connoting public ways. So I doubt that the lawmakers intended to make criminals of private citizens warming up their cars in their own garages on a frosty December morn.

If the goal of the law is to criminalize silly, even stupid behavior, then I think that it has zeroed in on a worthy target. Leaving your car idling while you run into Winn-Dixie to pick up a few things, or into City Hall to pay your water bill, or into the courthouse to buy your tag, just strikes me as a self-indulgent, unnecessary exercise (I do, however, plead guilty to leaving my truck running in 22° cold while I picked up my dry cleaning on the frigid morning that I wrote this).

The folly of leaving your car running idle was brought home to me back in the 1990’s when the Mayor of Meridian emerged from a downtown restaurant after lunch and discovered a city police patrol car idling in a parking space in front of the establishment, with the keys in the ignition. The Mayor hopped behind the wheel and drove the car three blocks to the police station, where he parked and locked the car, pocketing the keys. When the officer returned to where he had parked his vehicle and discovered it missing, he radioed in that it had been stolen, and an APB was issued. A frantic search ensued, and in an hour or so the misplaced car was found right in front of the police station. Somehow the keys were located in the Mayor’s office, and in order to recover his wayward key ring the sheepish officer had to submit to the Mayor’s tongue-lashing. Considering the scope of unpleasantries that could have occurred if some malefactor had gotten hold of his car rather than the Mayor, the officer was lucky to get off so lightly.

That incident highlights something we all have observed: law enforcement officers often leave their official vehicles running while they step away to tend to other business. I suppose it’s a time-saving measure in the event of an emergency. Other first responders do, too, even with their private vehicles, although that can get carried to extremes. As I finished fueling my truck one day, an SUV pulled up to the pump behind me, and out jumped a young woman in EMT gear. An EMT tag adorned the front of the vehicle. She kept her engine running as she began pumping. I was happy to exit the scene as promptly as I could before everything went up in a Hollywoodesque blaze of glory.

But don’t blame the perpetrators. We are governed by the Law of Unattended Consequences.

 

 

An Approach to Due Execution of the Will

January 17, 2018 § 2 Comments

The subscribing witness has an important responsibility in connection with execution of the will. The witness’s duty is four-fold:

First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.]. Estate of Holmes, 103 So.3d 1150 at ¶ 10 (Miss. 2012).

I blogged about the concept here.

As the attorney, you have a duty above that of the witnesses to ensure that your client, the testator, is competent to make decisions that result in a valid will.

But how do you do that?

In a recent post on the Expert Institute Blog, a geriatric psychiatrist offered a template for assessing your testator’s testamentary capacity:

 1) Awareness of the situation/communicating a choice:

Can you tell me the purpose of today’s meeting?
What have you decided to do regarding your Will?

2) Factual understanding of the issues:

Can you tell me what a Will is?
Do you know or can you approximate the extent of your estate?
Who in your family may survive you?
Can you tell me in your own words what you would like to happen to your estate after you die?

3) Appreciation of likely consequences:

Do you believe that a Will is necessary? What do you believe would happen if you do not have a Will?
Can you tell me how your Will may affect your family?
How well does this Will represent your wishes?

4) Rational manipulation of information:

How did you reach your decisions when you thought about your Will?
What was important to you in reaching your decision?
What are the advantages and disadvantages of your decision?
Were there other possibilities that you considered but decided against? What were your reasons? What makes Person A a better choice as your heir than Person B?

As the blog states:

As the population ages, lawyers will increasingly need to detect intact versus impaired decision-making capacities. Lawyers can directly screen for decisional capacity … . In so doing, they rely on more than simple impressions of their clients, or on family members’ subjective, at times conflicted, views. Clients can mask their deficits and family members can misjudge the severity of those deficits, or be motivated by self-interest. Primary care physicians are often asked to determine competency, but they may not be trained to assess cognition, and their opinions may lack validity. This explains why physician competency evaluations often disagree. Unless a client’s decision-making capacities are specifically assessed, the presence or absence of those capacities cannot be presumed.

If you will conduct this inquiry in the presence of the subscribing witnesses, you can ensure that they can competently testify later if necessary about the testator’s testamentary capacity.

I suggest you make this template a form that you keep with the client’s file, including a dated note that it was discussed with the client, and including any observations. Also have the subscribing witnesses sign it. That could prove to be an invaluable aid in the event of a will contest.