Modification and Ability to Pay Attorney’s Fees

June 25, 2018 § 1 Comment

Adam and Karen Lewis were divorced in 2002, ending a 13-year marriage. Their PSA, incorporated into the judgment, provided that Adam would pay Karen $15,000 a month in permanent, periodic alimony.

In 2015, Adam filed a petition to terminate alimony because Karen was in a de facto marriage. Following a trial, the chancellor dismissed his case under MRCP 41(b) for failure to meet his burden of proof. The chancellor also awarded Karen one-half of her attorney’s fees, or $13,935.50, for being required to defend herself in the case. The proof in the record was that Karen had substantial assets. Adam appealed.

In Lewis v. Lewis, handed down March 20, 2018, the COA affirmed the dismissal, but reversed and rendered on the award of attorney’s fees. Judge Wilson wrote for the majority in this 6-4 case:

¶31. As discussed above, the chancellor found that Karen “is of a financial standing in the court system that is not often seen and is capable of providing some of her own defense costs,” so she denied Karen’s request for attorney’s fees in part. However, the chancellor awarded Karen half of her fees ($13,935.50) because she found that Karen was “entitled to receive compensation for the requirement that she come in and defend herself.” Adam argues that this award was an abuse of discretion and should be reversed and rendered, and we are compelled to agree.

¶32. Adam’s complaint to terminate alimony was not frivolous or subject to sanctions under the Litigation Accountability Act or Rule 11, nor was he found to be in contempt of court. Therefore, the only possible basis for an award was Karen’s own inability to pay the fees. Karen is not entitled to an award of attorney’s fees just because Adam “is more capable of paying her attorney’s fees.” Rhodes v. Rhodes, 52 So. 3d 430, 449 (¶79) (Miss. Ct. App. 2011). Rather, Karen must “show that she is unable to pay [her fees]” as “a prerequisite to an award of attorney’s fees.” Id.; accord, e.g., Watson v. Watson, 724 So. 2d 350, 357 (¶30) (Miss. 1998) (holding that a chancellor may not award attorney’s fees to a spouse who “is
financially able to pay for her own attorney’s fees”).

¶33. Karen failed to show that she is unable to pay her attorney’s fees. Karen continues to receive alimony of $15,000 per month from Adam, and she has substantial assets. At the time of trial, Karen already had paid more than half of the fees that she requested, and she only testified vaguely that she thought her mother “might have helped” her make one payment because “that particular month” she could not pay the entire bill. It is clear that Karen is financially able to pay her own attorney’s fees. Therefore, we hold that the chancellor abused her discretion by ordering Adam to pay Karen’s attorney for her.

This is a pretty predictable outcome. The law is fairly clear as it applies in this case.

Only thing is, anyone who has done much domestic work will recognize the leverage that this gives to an ex-spouse who can vindictively take the other ex back to court repeatedly, carefully avoiding frivolous and vexatious actions, the result being that the ex is wiped out financially. I have seen it in custody cases, where there are repeated charges of material change and adverse effect. So long as there is an arguable basis in fact, no judge is going to deny a parent access to the courts to determine the best interest of children.

So I get the logic behind the rule. It just seems like it opens the door for some abuse.

An earlier post discussing the court’s ruling on the termination of alimony issue is at this link.

Reprise: Lawyers’ Prayers

June 22, 2018 § 4 Comments


September 16, 2011 § 3 Comments

Practicing law can be a treacherous proposition, what with its snares and traps awaiting your every misstep. Sometimes the stress can be overwhelming, and the isolation you feel — that no one can understand the magnitude of the pressure cooker you’re in — makes it worse. Lawyers who have grown past cynicism to reach a deeper place come to know that you have to search somewhere outside yourself for strength and endurance. Here are two prayers for harried lawyers.

This prayer of the remarkable Thomas Merton, author and Trappist Monk, is reassuring and comforting for those who have to brave swamps full of dragons and unexpected perils every day.

My Lord God, I have no idea where I am going.
I do not see the road ahead of me.
I cannot know for certain where it will end.
Nor do I really know myself, and the fact that I think I am following your will does not mean that I am actually doing so.
But I believe that the desire to please you does in fact please you.
And I hope I have that desire in all that I am doing.
I hope that I will never do anything apart from that desire.
And I know that if I do this you will lead me by the right road, though I may know nothing about it.
Therefore I will trust you always though I may seem to be lost and in the shadow of death.
I will not fear, for you are ever with me, and you will never leave me to face my perils alone.

This next prayer comes from Alan Lomax’s The Land Where the Blues Began. He recorded it at a black Baptist state convention in Clarksdale in 1942. The sentiment, especially with its reference to a “war coat,” could not be more appropriate for the litigation gladiator.

You know I can’t help from loving You.
Because You loved me myself,
Long before I knew what love is.
And when my time have come
I’ve got the king’s crown in coming glory.
And when I come down to the river,
Help me to pull off my war coat and enter.
I’ll enter in the name of the Lord,
Make my enemies out a liar,
Make us able to bear our burdens.

Refreshing Recollection

June 20, 2018 § Leave a comment

It happens sometimes that the witness simply can not recall something that you need to have in the record. Before you give up and move on to something else, consider MRE 612, which is entitled, “Writing Used to Refresh a Witness’s Memory.”

Actually, the title is a misnomer, because under MRE 612(a) you can use a “writing, recording, or object” to refresh the witness’s memory.

Here are the steps:

  1. Establish that the witness is unable to recall something;
  2. Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
  3. Counsel shows the writing, recording, or object to the witness and asks whether looking at it will help refresh her memory. If yes, she is allowed to read or look over it silently;
  4. If the witness after looking at it can then say she now recalls the matter independent of the writing, recording, or object, she may then testify to that independent recollection;
  5. If the witness can not recall the matter after that procedure, counsel may lay a foundation for admitting the writing’s, recording’s, or object’s contents under MRE 803(5), past recollection recorded exception to the hearsay rule (that’s for another day).

What is an “object?” The advisory committee note mentions a photograph as an example. But there is no requirement in the rule that the object have content or substance, as would a photograph, a map, or a hand-drawn sketch. In law school our evidence professor said that a pencil or a comb could be used, so long as they would help refresh the witness’s memory.

When I practiced, I liked to do step 3 a little differently. I would ask the witness whether there was something that would help jog his memory. Most times the answer was something like, “Yes, if I could look over the inventory I made,” or something to that effect, I would then hand the witness what he identified.

Remember that under the MRE the writing, recording, or object used in R612 need not meet the requirements of past recollection recorded unless and until the witness has no independent recollection after looking at it and must use it to testify (e.g., “I don’t remember well enough to testify without referring back to this list …”).


Dodging the Summary Judgment Bullet

June 19, 2018 § 3 Comments

Daren Froemel filed a will contest claiming that his mother, Mary Lou, lacked mental testamentary capacity when she made her will. The beneficiaries of the will filed a motion for summary judgment with affidavits of the subscribing witnesses and others attesting to her mental capacity. Daren responded in an answer that the discovery revealed Mary Lou had been hospitalized at the time for “altered mental status,” and that she had been prescribed and was taking 22 different medications, including morphine. He argued that those facts established a basis to deny summary judgment, but he did not file counter-affidavits. The chancellor granted summary judgment in favor of the beneficiaries, and Daren appealed.

In Estate of Froemel: Froemel v. Williams, et al., handed down May 8, 2018, the COA affirmed. Judge Lee penned the unanimous opinion:

¶13. Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they established a prima facie case regarding Mary Lou’s testamentary capacity. Additionally, when the beneficiaries moved for summary judgment in response to Daren’s contest, they attached four affidavits of individuals that testified as to MaryLou’s mental capacity. At this point, Daren was required to respond to the summary judgment motion with some evidence to rebut the beneficiaries’ prima facie case to show a genuine issue for trial. Daren, however, filed an answer in response—and nothing more—in which he reiterated that Mary Lou had been hospitalized for altered mental status and had prescriptions for twenty-two medications. Following the reiteration of these two facts, Daren stated in his response, “Clearly, a genuine issue of material fact exists in regards to the decedent’s mental state.”

¶14. It is well settled that “[t]he existence of a genuine issue of material fact will preclude summary judgment.” Calvert v. Griggs, 992 So. 2d 627, 632 (¶11) (Miss. 2008). However, we note that “[a] fact is neither material nor genuinely contested . . . merely because one party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶10) (Miss. Ct. App. 2007). “The mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Kaigler v. City of Bay St. Louis, 12 So. 3d 577, 583 (¶27) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss. 1990)). “More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Id.

¶15. In the instant case, Daren rested upon the mere allegations in his pleadings and summarily concluded there was a genuine issue of material fact. While Mary Lou’s hospitalization and prescriptions the month prior to the execution of her will may have been important facts in this case, there was no evidence of a genuine issue of material fact—namely, that Mary Lou lacked testamentary capacity as determined by the three relevant factors at the time she executed her will. Daren offered no testimony by affidavit, deposition, or otherwise regarding Mary Lou’s testamentary capacity. Our supreme court has offered the following in response to a nonmovant’s failure to appropriately respond to a summary judgment motion:

[W]e wish to make it clear that this Court intends to enforce Rule 56(e), which requires affidavits or other evidence establishing “a genuine issue for trial.” Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings . . . .

Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 291 (¶24) (Miss. 2007).

¶16. Because the beneficiaries established a prima facie case that the will was valid—and specifically that Mary Lou possessed testamentary capacity at the time of its execution—and Daren failed to rebut the prima facie case with any summary-judgment evidence that there
was a genuine issue for trial, the trial court did not err in granting summary judgment.

Daren’s shortcoming in this case was to respond to the affidavits with mere assertions. Had he offered an affidavit with interrogatory answers and deposition excerpts attached, the outcome might have been different.

Still, were the requirements of Franklin actually satisfied here? Daren did cite to “discovery,” which we will assume here to include interrogatory responses and depositions, both of which must be sworn, and possibly responses to requests for admission. But are they a part of the record? Well, nowadays nobody files that stuff in the record. Merely referring to it without attaching excerpts supporting your position is like saying, “You’ll have to take my word for it, Judge.” Again, an affidavit with excerpts attached would likely have made a difference.

Another cause for pause is the language of R56 itself. R56(c) specifies that “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If any … I wonder what that means amidst all that other material the court is supposed to consider?

The moral of this story is to file one or more affidavits, even if all you are relying on is discovery material.

The Best Evidence Rule in Action

June 18, 2018 § Leave a comment

You won’t see many appellate cases in which the best evidence rule (MRE 1002, 1003, and 1004) comes into play. That’s because the appellate courts give great deference to the trial judge’s rulings on evidence.

But a recent case shows how the rule can come up at trial, how the trial judge deals with it, and how the appellate courts address it.

A contract dispute arose between Clifford Frisby and Ferrell Warden over sale of a home. Warden claimed that the parties had an agreement that he would perform certain work on the property and be given credit for the value of the work against the sale price. At trial he offered three documents into evidence to support his claim. Frisby objected to their authenticity. The chancellor ruled that they were admissible, and ultimately ruled in favor of Warden. Frisby appealed on several grounds, one of which was that the chancellor erred in admitting the three documents contrary to the best evidence rule.

In Frisby, et al. v. Warden, decided May 8, 2018, the COA affirmed. Judge Greenlee wrote the opinion for a unanimous court:

¶7. Frisby asserts that the chancellor improperly admitted the disputed handwritten contracts into evidence. According to Frisby, these documents were duplicates of original handwritten documents that he never signed. Therefore, he argues that pursuant to Mississippi Rules of Evidence 1002 and 1003, the duplicates were inadmissible because there was a genuine question as to their authenticity. In response, Warden asserts Frisby has
offered nothing to show that the chancellor abused her discretion nor that any substantial right has been affected. A review of the record indicates that the chancellor, in denying Frisby’s motion for reconsideration, explained the handwritten contracts were admitted into evidence pursuant to Mississippi Rule of Evidence 1004(c). We find this determination was not manifest error.

¶8. Frisby correctly asserts that pursuant to Rule 1002, known as the best-evidence rule, an original writing is generally required to prove its contents. Further, pursuant to Rule 1003, Frisby correctly asserts that a duplicate cannot be admitted when a genuine issue has been raised about the original’s authenticity. However, an exception to the best-evidence rule exists when the party against whom the original would be offered had control of the original, received notice that the original would be subject to proof at trial, and failed to produce the original at trial. M.R.E. 1004(c).

¶9. In the present case, Warden introduced duplicates of three handwritten documents into evidence in support of his complaint for specific performance. Frisby initially objected to their introduction, but allowed them to be introduced “for the purpose of this hearing,” while still contesting their authenticity. Thus, the hearing proceeded to determine the authenticity of the alleged contracts, with both parties presenting multiple witnesses.

¶10. During the hearing, Frisby testified as an adverse witness and explained that he had never seen the three alleged contracts before and that Warden had never been to his office. However, Warden testified that he drafted all three of the handwritten documents “so that [he] could have some kind of documentation on a deal [they] had on the house.” Further, Warden testified that while he originally had the original documents, he met Frisby at Frisby’s office, where Frisby made copies of the documents and retained the originals, and gave Warden copies. Michael Neill, the previous owner of the property, also testified for Warden. He testified that he deeded the property to Frisby in 2010, and that when he spoke with Warden in 2011 or early 2012, Warden said he was buying the house from Frisby and “doing odd jobs” to pay off the house. Further, Neill testified that he saw Frisby sign a document in 2014, but that he did not know the document’s purpose. Neill later testified that he had overheard Frisby and Warden discussing ownership of the house for labor.

¶11. As previously mentioned, the admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of discretion. Tunica Cty. [v. Matthews], 926 So. 2d [209] at 212 (¶5) [(Miss. 2006)]. Further, “the chancellor sits as the fact finder and is the sole judge of the credibility of a witness when resolving factual disputes.” Stokes v. Campbell, 794 So. 2d 1045, 1048 (¶11) (Miss. Ct. App. 2001). As such, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006). The chancellor, after hearing all the evidence, accepted Warden’s testimony as the most credible, admitting the duplicates pursuant to Rule 1004(c). Because there was substantial credible evidence in the record to support the chancellor’s finding, this Court must accept them. Accordingly, this issue is without merit.

Not much to add. The chancellor found the documents to be what they purported to be — that’s authenticity — and her decision was supported by evidence in the record. It’s her call to make, she made it, and the COA affirmed it.

The testimony that Frisby copied the documents and kept the originals was enough to shoot down his demand to produce the originals, per MRE 1004(c).

To Die For

June 15, 2018 § 10 Comments

The suicides of Kate Spade and Anthony Bourdain last week are a reminder that the pain and agony that torment some to death often lie hidden beneath layers of camouflage that give the appearance of happiness, health, and well-being. We see celebrity and fame, and we imagine joy. We see success and wealth, and we infer inner peace. We see physical beauty and we assume health and healthy lifestyle. Appearances, as they say, do deceive.

It’s no secret that the law is a corrosive profession. The pressures and stress imposed by duty to client and court are enormous. Deadlines carry grievous consequences. Add to that the heavy responsibilities of family, overhead, and finances, and you have a toxic stew that can eat away at and destroy happiness.

Members of the legal profession (lawyers and judges) have a suicide rate 1.36 times greater than the general population.

When the stresses of the profession become overwhelming, it’s easy to feel isolated, to be haunted by the thoughts of failure, and to want an easy out before your weakness is exposed.

But here are three thoughts:

  1. Everyone is struggling; we just don’t see all that is beneath the surface. You are not the only one.
  2. Just because you are struggling does not make you a failure. And even if you do fail, that does not make you worthless.
  3. Silence, secrecy, and shame are seductive, but are destructive over time. Talk about what you are feeling with someone who cares and who will listen. Empathy is a powerful, healing balm. A kind word may enable you to take a first step toward the light.

Depression is a widespread phenomenon. No one is immune. There is effective treatment available for it.

And, finally, let me state the obvious: Suicide is never a tidy exit; it leaves in its wake a tidal wave of hurt, pain, sorrow, regret, and questions that can never be answered. I speak from experience.

Yes, the law is a corrosive profession. But it is not one to die for. If you’re feeling overwhelmed, seek help. Get help. Step back from the brink.

8 Years and Counting

June 13, 2018 § 15 Comments

Tomorrow this blog will be 8 years old.

I don’t think when I started out that I thought it would still be around that much later, but here we are, and with 950+ followers to boot. This is the 2,019th post.

I hope you are getting something worthwhile out of this. I am still enjoying it, so you will have to put up with me a while longer.


The Albright Tie

June 12, 2018 § Leave a comment

If the chancellor finds that neither party prevails over the other in Albright factors, may the chancellor find merely that and not make detailed findings? Like this:

The court has considered all of the evidence and testimony in light of the enumerated Albright factors and finds that these two parents are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test—and, therefore, the court will and does hereby order joint legal and physical custody to be exercised by both of these parents with regard to the two children that are the subjects of this lawsuit.

There actually is authority to the effect that the chancellor may do exactly that, as we will see, but the COA reversed and remanded a recent case where the chancellor used the language above and did not make detailed findings.

In the case of Robles v. Gonzales, handed down May 15, 2018, Judge Carlton wrote for the court:

¶24. In Adoption of Wright v. Wright, 160 So. 3d 737, 742-43 (¶16) (Miss. Ct. App. 2015), this Court followed the supreme court’s prior holding in Powell, 792 So. 2d at 249 (¶33), [Fn 4] in determining that a chancellor erred by failing to make specific findings regarding each applicable Albright factor. This Court found that “the chancellor’s opinion arguably discussed several of the Albright factors” but explained that “it did so unintentionally and did not address all of the factors applicable in this case.” Id. at 742 (¶16). This Court then reversed the chancellor’s judgment and remanded the case with instructions for “the chancellor to support his decision with an on-the-record Albright analysis.” Id. at 743 (¶16).

[Fn 4] In Powell, 792 So. 2d at 249 (¶33), the supreme court reversed the chancellor’s judgment after finding that the chancellor failed to make specific findings for each Albright factor when making his custody determination.

¶25. However, in Sobieske v. Preslar, 755 So. 2d 410, 413 (¶12) (Miss. 2000), the supreme court affirmed the chancellor’s judgment despite its determination that the chancellor failed to make any express findings as to the Albright factors. In Sobieske, the chancellor provided only the following language in his custody determination:

Considering the factors set forth in Albright, it appears that both parents have the desire and capacity to have the primary custody of [the minor child], however, [the minor child] has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. [The minor child] has close ties to Mrs. Sobieske’s twin sister, Mary Allred, and to Ms. Allred’s daughter, Meagan, who is approximately the same age as [the minor child]. [The minor child] also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since [the minor child] does not have any other family in that area, there are uncertainties for her there.

Id. at 411-12 (¶4). In Sobieske, the chancellor’s ruling “appears to recognize that both parents are fit under Albright[.]” Id. at 412 (¶4). The supreme court held “it can be inferred from his citation to Albright that [the chancellor] felt that both parents were fit under Albright” but expressed that “it certainly would have been preferable for the [c]hancellor to have expressly considered each Albright factor[.]” Id. at 412, 413 (¶¶4, 12). However, the Sobieski Court explained that “it is perhaps understandable that [the chancellor] did not do so in the present case, given that the testimony established that both [parents] were fit and loving[.]” Id. at 412 (¶4). In affirming the chancellor’s judgment, the Sobieske Court recognized the deference that an appellate court “must show to the [c]hancellor in the exercise of his discretion.” Id. at 413 (¶12).

¶26. In the more recent case of Huseth v. Huseth, 135 So. 3d 846, 858 (¶36) (Miss. 2014), the supreme court again affirmed a chancellor’s judgment awarding physical custody of the minor child to the mother despite finding that the chancellor failed to conduct a detailed, on-the-record analysis of the Albright factors. The supreme court recognized that the chancellor “state[d] that she had weighed the [Albright] factors, . . . [plus] significant evidence was adduced by each party [that] was relevant to the Albright factors and the determination of custody.” Id. Finding its prior precedent in Sobieske controlling, the supreme court affirmed the chancellor’s custody determination and held as follows:

In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor’s indication that she had considered the factors by noting the stability achieved by the child’s staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor’s custody determination.

Id. at 859 (¶39). [Fn 5]

[Fn 5] “The chancellor is only required to address those Albright factors that are applicable to the case before him.” Rayner v. Sims, 228 So. 3d 353, 357 (¶12) (Miss. Ct. App. 2017).

¶27. In the case before us, although the chancellor failed to provide an express, on-the-record determination regarding each Albright factor in his final judgment, the chancellor did state that in making his child-custody determination, he “consider[ed] and balanc[ed] the factors set forth by the Mississippi Supreme Court in Albright[.]” The trial transcript also reflects that the chancellor explained that he “considered all of the evidence and testimony in light of the enumerated Albright factors.” However, the chancellor’s ruling reflects only his determination that Robles and Gonzalez “are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test.” Unlike Sobieske, the chancellor made no additional finding that both parties were loving and fit, and the record does not reflect on its face that both parents are loving and fit so as to support an award of joint custody. Therefore, we must remand this case to the chancellor to provide findings in accordance with Albright to support his custody determination.

¶28. Additionally, when awarding joint custody, the supreme court has held that “unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005). The supreme court instructed that “[t]his is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.” Id. The chancellor failed to make on-the-record findings regarding his application of the various Albright factors and as to whether the parties were capable of cooperatively sharing joint custody. We cannot properly review the chancellor’s child-custody determination without findings in support of his determination. Based upon the foregoing, we reverse the chancellor’s judgment and remand the case to the chancellor for further proceedings consistent with this opinion.

So, sometimes “Sobieske is controlling,” à la Huseth, and sometime not, as in this case. The fault line here seems to be in the award of joint custody. The COA felt that it needed more findings to ensure that the award of joint custody was properly made.

As a practitioner, I would encourage you to assume that there must be findings as to each applicable Albright factor in every case. If the chancellor does not do it in a bench ruling or written opinion or even in a final judgment, file a R59 motion asking the court to make such findings. You can even offer your own proposed findings and conclusions of law. It’s the only sure-fire way to try to protect your client in the event of an appeal.

Relocation and Joint Custody

June 11, 2018 § Leave a comment

Julia Bennett and her husband, Andre, were divorced in 2011 on the ground of irreconcilable differences. Their PSA provided that the parties would share joint physical and legal custody, with Julia to have the children with her most of the time.

When Julia decided to relocate from Rankin County to St. Louis, Andre filed to modify, seeking sole custody, and to keep the children in Rankin. Julia counterclaimed for sole custody, and to modify the visitation based on her new residence in Missouri.

At hearing, Andre testified that he was actively involved in the lives of his children, and that he had recently purchased a home suitable for them to stay with him. Julia testified that her father and fiancé lived in St. Louis, and that she had a job awaiting her there. She said, too, that she had been in the process of enrolling the children in school in Missouri until the chancellor had entered an emergency order that the children be enrolled in Rankin County schools. One of the children, Madeline, age 14, testified that her preference was to stay with her mother, with whom she was close. She conceded that she was close to her father also, and that she would abide by the court’s order either way.

The family master, serving as a guardian ad litem (GAL) found that no material change had occurred, because Julia had not moved; however, a move would create a material change adverse to the children, and, if so, Andre should have custody. The GAL’s report incorporated an Albright analysis, which included Madeline’s preference. The chancellor agreed with and adopted the GAL’s recommendations and entered a judgment providing that if Julia relocated to Missouri Andre would have custody, Julia would have liberal visitation, and she would pay child support.

Julia appealed, challenging only the determination not to honor Madeline’s preference. In Bennett v. Bennett, decided April 10, 2018, the COA affirmed unanimously. Judge Fair wrote for the court:

¶12. Julia only challenges one Albright factor – the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d 26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he must place the reasons in the record. Id.

¶13. In his Albright analysis, the family master noted the following regarding the child’s preference:

The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he’s been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you’re going to live with your dad. You don’t really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I’m just saying that’s just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to – to dad.

¶14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor’s discretion to adopt the family master’s recommendation. Accordingly, we affirm.

Some ruminations:

  • Anticipatory modifications have not been favored. See, McMurry v. Sadler, 846 So. 2d 244 (Miss. App. 2004), in which the court affirmed the chancellor’s decision to dismiss pleadings that alleged that a material change and adverse effect would result if an event happened. In most cases, this approach would be wise because it would be speculative to find material change and adverse effect would occur until they do.
  • Here, it was practical for the chancellor to address the impending move and its effect on joint custody.
  • Relocation almost always plays havoc with joint custody, leaving everyone — the judge included — dissatisfied with the result. To compound matters, the party who does’t wind up with what he or she wanted always feels cheated because joint custody is what they negotiated for, or what was ordered, in the first place.
  • This case highlights that the court is never required to follow a child’s preference. If the preference is not followed, however, the court must state the reasons why. Here, by adopting the GAL’s report and findings on preference, the chancellor made a record as to why he did not follow the child’s preference.

Dispatches from the Farthest Outposts of Civilization

June 8, 2018 § Leave a comment