May 29, 2020 § Leave a comment

At Kinderdijk, Netherlands.

Limitations on Restricting the GAL

May 27, 2020 § Leave a comment

In divorce litigation between Sylvia and Mark Barber, the chancellor appointed a GAL to investigate Sylvia’s allegations that Mark had abused their children. After the GAL found the claims to be unsubstantiated, the chancellor granted Mark’s motion to limit the testimony of the GAL and to exclude the report from evidence. After the case was concluded, Sylvia appealed on several grounds, among them that the chancellor erred in excluding the GAL report and limiting the GAL’s testimony.

In Barber v. Barber, decided January 30, 2020, the MSSC reversed. Justice Kitchens wrote for the 6-3 majority:

¶23. Sylvia Barber argues that our courts require a court-appointed guardian ad litem either to testify at trial subject to cross-examination or to submit a written report and, if requested, to make recommendations. Because Culpepper was not allowed to testify or submit her report, she contends that the chancellor’s decision was clear error. [Fn 4]

[Fn 4] According to Sylvia Barber, “[a]lthough the [guardian ad litem] fulfilled all obligations, she was not allowed to testify, her report was completely stricken; and the Court strangely refused to receive any of her recommendations.”

¶24. This Court has recognized that “[t]he role to be played by a guardian ad litem is complex and not subject to a simple, universal definition.” S.G. v. D.C., 13 So. 3d 269, 280 (Miss. 2009). The Court clarified function of the guardian ad litem in S.G.:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of
the court—to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Id. at 280-81.

¶25. Thus, chancellors may assign duties to a guardian ad litem upon appointment. This Court “encourage[s] chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings.” Id. at 281. This charge to

[s]et[] out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation[s] by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, [but] the role of the guardian ad litem should at all times be clear.


¶26. This Court has held that “the guardian ad litem should never serve as a substitute for the court. The court is not bound by the guardian ad litem’s recommendation . . . .” Id. at 282 (footnote omitted). To be sure, guardians ad litem serve important roles as “appointed . . . investigator[s] for, or advisor[s] to, the court,” and, as authorized, “the guardian ad litem, should recommend a course of action to the court . . . .” Id. at 282. This Court has emphasized that “the trial court, and not the guardian ad litem, is the ultimate finder of fact.” Id. at 283. Further, this Court will not impose a strict rule in circumstances in which chancellors are authorized to exercise their discretion “as the needs of a particular case dictate . . . .” Id. at 281; see also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000)(“Although this Court has required a guardian ad litem to perform tasks competently, there is no requirement that the chancellor defer to the findings of the guardian ad litem, as is proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).

¶27. When charges of child abuse or neglect arise, Mississippi Code Section 93-5-23 mandates the appointment of a guardian ad litem. The statute provides that a court “shall appoint a guardian ad litem if charges of child abuse or neglect are raised in a child custody action. Miss. Code Ann. § 93-5-23 (Rev. 2018) (emphasis added). [Fn 5] Under this statute, a judge is required to “investigate, hear and make a determination” regarding allegations of abuse. Id. And the court “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016) (citing Miss. Code Ann. § 93-5-23 (Rev. 2013)). Upon appointment, a guardian ad litem is obligated “to protect the interest[s] of the child[ren] for whom he has been appointed” and is authorized to “investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest.” Miss. Code Ann. § 43-21-121(3) (Supp. 2019). When appointed in accordance with Section 93-5-23, the guardian ad litem must be an attorney. Miss. Code Ann. § 93-5-23.

[Fn 5] The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.

Miss. Code Ann. § 93-5-23.

¶28. Sylvia Barber argues on appeal that the chancellor was bound by this Court’s decision in McDonald v. McDonald and that, in a mandatory appointment, the [guardian ad litem] must either submit a written report or testify and must make recommendations to the court if requested. McDonald v. McDonald, 39 So. 3d 868, 883 (Miss. 2010). Indeed, this Court has relied on McDonald to hold that “[w]hen a chancellor chooses to hear the abuse allegation during a custody hearing, appointment of a [guardian ad litem] is mandatory. As part of his or her duties, the [guardian ad litem] must either submit a written report or testify, and must make recommendations to the court if requested.” Smith v. Smith, 206 So. 3d 502, 510 (Miss. 2016) (footnote omitted) (citing McDonald, 39 So. 3d at 883). Because, as discussed below, we find that the appointment of the guardian ad litem in this case was mandatory, the guardian was required to submit a written report or testify, and, if requested, to make recommendations to the court.

¶29. Before further discussion, we emphasize the serious and vital nature of guardians ad litem in safeguarding the welfare of children whose lives are impacted irrevocably by the decisions of our judicial system. The literal translation of the term guardian ad litem is guardian for the suit. Ad litem, Black’s Law Dictionary (7th ed. 1999). Section 93-5-23 and this Court’s decisions applying it make clear that the legislature and the judiciary have recognized the specific need for an officer of the court with the dedicated role of protecting the interests of children who are the subject of child abuse or neglect allegations. The appointment of a guardian ad litem is not a mere perfunctory hoop through which the court must go to resolve a child custody case. Rather, the role of the guardian ad litem is a meaningful one; it has been enshrined in the law and public policy of this state for the very reason that the guardian ad litem is the only participant in a child custody proceeding whose sole interest is identifying and protecting the rights of the children and reporting its findings to the court. Therefore, a chancellor’s failure to consider a mandatorily appointed guardian ad litem’s findings is an error of the utmost seriousness.

The court reversed and remanded. Justice Ishee dissented, joined by Randolph and Griffis. We’ll look at that next week.

Standing to Contest a Conservatorship

May 26, 2020 § Leave a comment

May a person being sued by a conservatorship challenge the legality of the conservatorship and have it set aside?

That was an issue that arose in the course of litigation between the conservators of Mary Cook and John Ward, her erstwhile business partner. The conservators sued Ward to recover money he got from Cook, charging him with undue influence and claiming she was incompetent. During the trial, Ward moved the court to “set aside” the conservatorship because the record showed that Cook was not given 5-days’ notice of the conservatorship hearing as required by § 93-13-253 (now superseded by the GAP Act). The chancellor denied the motion, and Ward appealed.

In Ward v. Estate of Cook, et al., the COA affirmed. Judge Jack Wilson wrote for the unanimous court:

¶24. As noted above, the trial in this case was held on October 17, 2018, and November 9, 2018. On November 8, 2018, Ward filed a mid-trial motion to set aside the conservatorship, alleging that Cook did not receive five days’ notice of the hearing on the conservatorship petition as required by Mississippi Code Annotated section 93-13-253 (Rev. 2013). The chancellor denied the motion and ruled that Ward was a “stranger” to Cook’s conservatorship and lacked standing to challenge it. On appeal, Ward argues that the chancellor erred and that the conservatorship was void and should be set aside due to insufficient notice and for additional reasons.

¶25. A person has both standing and a right to petition for the removal of a conservator if that person “has a legitimate interest present or prospective in [the ward’s] estate, or . . . some personal responsibility as regards the estate or the care or welfare of the ward.” In re Conservatorship of Davis, 954 So. 2d 521, 524 (¶12) (Miss. Ct. App. 2007) (emphasis omitted) (quoting Conservatorship of Harris v. King, 480 So. 2d 1131, 1132 (Miss. 1985)). In addition, “the chancellor, as superior guardian, might take notice of petitions by strangers in such cases as a matter of information to him openly tendered,” but such a stranger has “no privilege of appeal” if the chancellor refuses to consider his petition. Id. (emphasis added) (quoting Harris, 480 So. 2d at 1132). In other words, it is “clear . . . under Mississippi law that the receipt of such petitions [from ‘strangers’] is within the chancellor’s discretion.” Id. (quoting Harris, 480 So. 2d at 1132).

¶26. In the chancery court, Ward argued that he had standing to challenge the conservatorship simply because he was being sued by the conservators. On appeal, he similarly argues that his claim to the Overstreet Drive property constitutes an “interest” in Cook’s estate. However, the chancellor correctly rejected Ward’s argument. The estate’s claim that Ward had wrongfully taken money and property from Cook did not give Ward a legitimate interest in Cook’s estate. Therefore, Ward was a mere “stranger” to the estate. Furthermore, the chancellor did not abuse her discretion by denying Ward’s eleventh-hour challenge to the conservatorship. This issue is without merit.

That’s kind of interesting that the court might take notice of a stranger’s petition as a matter of information, but the stranger has no privilege of appeal if the trial court refuses to act on it.

May 25, 2020 § Leave a comment

State Holiday

Courthouse closed


May 22, 2020 § Leave a comment

Half of a Yellow Sun by Chimamanda Ngozi Adichie. The title refers to the golden rising-sun emblem on the national flag of the short-lived (1967-1970) Republic of Biafra (Bee-afra) that seceded from Nigeria, prompting a bloody tribal civil war in which millions were slaughtered and starved to death, and this is a story of that era. We see the unfolding events through several characters, including a professor, twin sisters from a patrician family, a house servant, an Englishman, and their interactions with each other and various minor figures. Adichie is a skilled storyteller adept at developing character, and she has a keen eye for description that she deftly crafts into entertaining prose. Fiction.

A Visit from the Goon Squad by Jennifer Egan. Pulitzer-Prize-winning “novel” that is actually a set of 13 discrete stories through which many of the same characters weave in and out as time oscillates from story to story between the present, past, and even future. The style and voice vary from chapter to chapter, rewarding the reader with a kaleidoscope of expression and points of view. Not only is the structure of the novel unorthodox, but in one chapter Egan adroitly describes a family’s interrelationships through a teenager’s power-point presentation. The writing is bright and crisp, the characters vivid and sharply drawn. Highly recommended. Fiction.

Calypso by David Sedaris. Yet another collection of amusing essays. We have come to expect laugh-out-loud passages in Sedaris’s work, and there are some here. But his reflections in this book on aging, his father, and his siblings sound a more somber, reflective tone. Still, if you enjoy Sedaris, you will enjoy this collection. Fiction or non-fiction; you decide.

Never Enough by Judith Grisel. A PhD neuroscientist and former addict explains addiction from a scientific and experiential point of view. If you’re like me, you will skim the chemistry and get right to the explanations of how addiction occurs, how different substances have different effects, and what is and is not effective treatment. Non-fiction.

A Different Drummer by William Melvin Kelly. A lost treasure, first published in 1962, but largely overlooked and overshadowed as civil-rights confrontations were beginning to grab headlines and attention. Rediscovered and republished in 2018, it is the story of a fictional southern state located between Mississippi and Alabama, and the exodus of its black inhabitants. Kelley, who was black (he died in 2017), tells the story from the viewpoint of the white people who become enraged over the development, with predictable results for that era. Fiction.

The Winter Soldier by Daniel Mason. An Austrian medical student joins the army of the Holy Roman Empire in World War I and is assigned to a field hospital in Hungary where he falls in love with a mysterious nun serving as a nurse. Mason’s writing sparkles, but the plot is thin to the point of transparency, and the book tends to plod toward its finish. Fiction.

An Unexpected Life by Mary Ann Connell. A bored housewife surreptitiously enrolls in law school against her husband’s wishes and goes on to become house counsel for the University of Mississippi, guiding the school through some of its most momentous legal challenges. This book is a Mississippi Who’s Who of the 60’s through the 2000’s, but more significantly is the tale of an indomitable spirit. A native of Louisville and daughter of a small-town lawyer, Connell’s poignant childhood molded her into an overachiever who relentlessly pursued education and excellence. Non-fiction.

The Warmth of Other Suns by Isabel Wilkerson. The remarkable story of the great migration of blacks from the south to the north from 1915-1970. Told through the lens of three emigrants, one from Mississippi, another from Louisiana, and the third from Florida, the book details the struggles, poverty, and oppression that drove them to seek better fortunes in Chicago, Los Angeles, and New York. They found greater freedom and prosperity, but experienced more discrimination and diminished opportunity than they expected. Woven through the stories of the three is the greater story of the millions who were a part of the mass movement. Non-fiction.

The Jersey Brothers by Susan Mott Freeman. Three brothers from New Jersey enlist in the Navy in World War II. One is stationed in the Phillippines when the islands are overrun by the Japanese and he is taken prisoner. This is the story of the family’s quest to find him. Non-fiction.


Do-It-Yourself Modification and Creation of a Child Support Obligation

May 20, 2020 § Leave a comment

Melvin and Karen Krohn were divorced, and Karen had custody of their daughter. The post-divorce period was contentious and litigious, but the parties did agree during one relatively peaceful period that the child could live with Melvin for a time, during which he would be relieved of his $1,500 a month child support obligation,  but the informal arrangement was never reduced to a court order.

When the parties went back on the warpath, one of Melvin’s several claims was that Karen should be ordered to pay him child support for the time when the child was with him, and Karen should be held in contempt for not paying child support during that period. The chancellor denied that relief and Melvin appealed.

The COA affirmed in Krohn v. Krohn, on April 21, 2020. Here is how Judge McDonald’s majority opinion addressed the issue:

¶13. “A chancery court has discretion in determining an award of child support.” Gunter v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019). “To justify the modification of the child-support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties.” Bruton v. Bruton, 271 So. 3d 528, 533 (¶14) (Miss. Ct. App. 2018). For irreconcilable-differences divorces, the parties’ private agreements entered into for the purposes in Mississippi Code Annotated section 93-5-2 (Rev. 2018) are “not enforceable, if not approved by the court.” Sullivan v. Pouncey, 469 So. 2d 1233, 1234 (Miss. 1985). “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).

¶14. In this case, the parties mutually agreed that their minor daughter would reside with Melvin for several months. There was no court order entered concerning this change in custody. Nor did the court ever order Karen to pay Melvin support for those months. Thus, the court had no basis to find Karen in contempt or order her to pay child support retroactively. Although the court gave no reason for denying Melvin’s requested child support for the months the child was living with him, the court relieved him from his court ordered obligation to pay child support ($15,000.00) during these months. Accordingly, we find that the chancery court did not abuse its discretion when it failed to order Karen to pay child support for the months Melvin had the child.

Some ruminations:

  • It’s pretty obvious that Karen could not be in contempt of an unenforceable DIY out-of-court arrangement that had never been approved by order of the court.
  • Although the court cited no authority, the agreement for Melvin to have credit against his child-support obligation during the period when the child lived with him is actually authorized in our case law. In Varner v. Varner, 588 So.2d 428, 435 (Miss. 1991), the parties entered into a similar situation by informal agreement, during which the father reduced his child support by 1/3 because he had responsibility for 1/3 of the children. After the arrangement ended, the mother sued for the back child support. The MSSC acknowledged that the payments were vested when due, and thus could not simply be released. Instead, the court held that the father had in essence contributed the support directly to the child, and he was therefore entitled to a pro-rata credit (in this case 1/3 of the total child support) for that direct support. I posted about Varner in another context yesterday. Varner is a useful case to know; I used it a number of times in my practice.

No Child Support is a No-No

May 19, 2020 § 4 Comments

Only last week I had two PSA’s presented to me in which the parties agreed to waive child support for the non-custodial parent. I refused to sign the judgments. The reason is that the parties are not at liberty to enter into such an agreement. The law could not be clearer.

This is from the case of Varner v. Varner, 588 So.2d 428, 432-33 (Miss. 1991):

Courts award child support to the custodial parent for the benefit and protection of the child. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Sorrell v. Borner, [593 So.2d 986, 987 (Miss. 1991)]; Cumberland, 564 So.2d at 847; Alexander, 494 So.2d at 368; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). Such support obligations vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid. Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016–17 (Miss.1990); Cumberland, 564 So.2d at 847; Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The only defense to an action therefor is payment.

No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity. The interest of children weighs in the judicial mind far heavier than those of either parent.

Cumberland, 564 So.2d at 847.

In Calton v. Calton, 485 So.2d 309, 310–11 (Miss.1986), this Court refused to recognize a contract between divorced parents, containing a covenant not to sue for child support. We agreed with the Florida court in Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); that

[t]he basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations; “children are not chattels whose rights can be bargained away by parents”….

Calton, 485 So.2d at 310; see also, Lawrence v. Lawrence, 574 So.2d at 1381.

Negotiation to obtain a divorce is devilishly difficult in Mississippi because of the codified “divorce blackmail” that is engrafted into our law. I know that you have parties who say that if you will just draft it so that the party with the upper hand can walk away with no bothersome financial obligations and they can move on to the next chapter. But the children are entitled to be supported, and the parents can not do away with it by agreement.


May 18, 2020 § Leave a comment

As I mentioned here before, the MSSC’s advisory committee on civil rules spent two years combing through the MRCP to identify language that needs to be updated, changed to reflect case law, and otherwise revised. A slew of proposed changes were sent up from the committee.

My earlier post is at this link.

This week the court handed down orders granting the committee’s motions on Rs 1 (Scope of the Rules), 15 (Amendments), 43 (Taking of Testimony), 63 (Disability of a Judge), and 71A (Eminent Domain). These particular amendments are minor and eliminate redundant and non-useful matter. The changes take effect July 1, 2020.

Proposed changes to Rs 6 and 56 are up for comment. The changes to 56 are particularly noteworthy.

This batch of amendments are likely harbingers of more to come, and you need to pay attention to what the court is doing so that you comply with and adapt to the changes.

Dispatches from the Farthest Outposts of Civilization

May 15, 2020 § 1 Comment

Testimony of a Spiritual Advisor

May 13, 2020 § 3 Comments

Robert and Daphne Cobb were married on July 25, 2011. At the time of the marriage, both knew that they had been diagnosed with cancer. Robert’s was the more severe case. He retired from his job and, four days before he succumbed to his cancer on February 12, 2012, signed forms that made Daphne beneficiary of his retirement funds totalling nearly half a million dollars. His sons, Bruce and Zach, had originally been the beneficiaries. After Robert died, the sons sued to set aside the transaction designating Daphne as beneficiary, charging undue influence or lack of capacity. The chancellor ruled against them, and they appealed.

One of the claims they raised on appeal was that the chancellor erred in admitting the testimony of Chatham, Robert’s spiritual advisor.

In Cobb v. Cobb, handed down April 28, 2020, the COA affirmed. Judge McDonald wrote for the majority:

¶29. Bruce and Zach claim that the chancery court erred in allowing Chatham to testify. We disagree. Private and confidential communications with clergy may be excluded as evidence by a person with standing to raise such a privilege. M.R.E. 505. Here, Bruce and Zach did not have standing to raise the privilege. M.R.E. 505(c). Moreover, Chatham did not testify to his “communications with Robert,” but rather about Chatham’s observations of Robert during Chatham’s interaction with Robert. See M.R.E. 505(a)(2), (b). Moreover, Mississippi Rule of Evidence 505 does not apply unless a communication is made “to a clergyman in his professional character as spiritual advisor.” Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1245 (¶116) (Miss. 2005) (quoting M.R.E. 505(b)).

¶30. In this case, Chatham did not testify to “communications” with Robert; Chatham merely described his observations of Robert’s speech and abilities during their visits. Moreover, this contest to the beneficiary change was brought by Bruce and Zach individually—not on behalf of Robert’s estate or as Robert’s personal representative. Therefore, neither son has standing to object to any of Chatham’s testimony, even communications with Robert. Accordingly, Chatham’s testimony was admissible.

Some thoughts:

  • The sons lacked standing because they brought the action individually and not on behalf of the estate or as Robert’s administrator or executor. If there were privilege to assert here, it was Robert’s privilege, not theirs. I see lawyers do this every now and then in issues of privilege and in objecting to discovery; they assert claims that are not theirs on behalf of witnesses and even the other party.
  • The testimony was not about the substance of communications, but rather about what Chatham observed with his senses. That’s the key distinction here, and it’s a nuance that some lawyers overlook in the heat of trial. They keep trying to find inventive ways to get hearsay into the record and never ask the witness what she observed about the speaker’s demeanor, or what the speaker was doing while she spoke (e.g., wringing her hands, holding her face in her hands and rocking back and forth, crying, tone of voice).