“QUOTE UNQUOTE”

August 26, 2011 § Leave a comment

“I am sorry to say that there is too much point to the wisecrack that life is extinct on other planets because their scientists were more advanced than ours.”  —  John F. Kennedy

“Technology is a sprinter; the Law is a marathon runner.”  —  A.K.T. Rex

“For a list of all the ways technology has failed to improve the quality of life, please press three.” —  Alice Kahn

DECISIONS, DECISIONS, DECISIONS

August 25, 2011 § 1 Comment

It’s the end of a grueling three-day custody trial. The judge has recessed and will render a bench opinion at the end of the recess. You and opposing counsel are tired of the case, of fussing with each other, of the judge, of being out of the office, and of dealing with the clients. The judge gave the attorneys the option of a bench opinion or a written opinion later, and you and counsel opposite elected to end it right then and there.

Did you make the right choice? Maybe not.

The New York Times published a fascinating article on August 17, with the title, “Do You Suffer from Decision Fatigue?”

I encourage you to follow the link and print a copy. It is worth a read for every lawyer and judge to help understand how decison-making ability degrades with accumulation of decision-making, and how scheduling and trying matters may affect their outcome.

The study shows how the act of making decisions actually drains the brain of energy through the course of a day. Initially, the brain, full of energy and fresh, tackles decision-making with ease. The more decisions the brain is called on to make, however, the less energy it has available to devote to the task, and performance degrades. It’s like starting off on that jog through the park full of vigor and energy, and winding up panting and walking on jellyish legs to your car three miles later.

The study also says that blood glucose levels have an effect on decision making. The lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. Decisions made after meals and snacks are, as a result, better reasoned and more true to the facts and law.

So what are the implications as you plod your way to the end of that stressful trial? Consider:

  • It’s the judge’s job to make tough decisions every day, and quite often many times through the course of a day. Decison-making is not confined to the final outcome of the case. Decisions must be made objection-by-objection, and often in rapid-fire fashion. To top it off, good lawyers making strong legal arguments intensify the process.
  • It’s true that judges are professionals, and that decision-making is part of the job, but judges are human, and are subject the to same fatigue factors as others.
  • Keep in mind that the judge is not only depleting energy with decision-making while on the bench. The judge is paying attention, evaluating evidence and testimony and making notes, all of which in combination takes its own, separate toll. 
  • As an attorney, you can reduce wear and tear on your judge’s psyche by reducing the number of objections and preliminary matters you call on the judge to decide. 
  • If you anticipate that a witness will generate contentious argument and require rulings on admissibility, it’s probably best to tackle those early in the day before the judge has begun to wear down.
  • You might want the judge to take the final decision under advisement, which allows the court to delay the decision to a time when the judge is more refreshed and capable of producing a better result.

I can tell you from experience that patience and insight both wane over the course of a taxing trial. I’ve remarked more than a few times to my wife after a trial that I was as worn out as if I had been one of the trial lawyers. You need to take that into consideration when you plan out your day in court.

EQUITABLE DIVISION AND MARITAL FAULT

August 24, 2011 § 5 Comments

It is almost a platitude of Mississippi law that, “Courts may divide marital assets between divorcing spouses in a fair and equitable manner — equal division is not required.”  Bell, Mississippi Family Law, § 6.01[4].

The sticking point is where to draw the line between “fair and equitable” and “equal.” The appellate decisions come in all sizes, colors and flavors.

Bond v. Bond, decided by the COA August 16, 2011, is the latest iteration on the point. In that case, Jimmie Lee proved that his wife, Donna, had committed adultery during their four-year marriage. The chancellor awarded Jimmie Lee 90% of the equitable division, and gave Donna the remaining 10%. Jimmie Lee appealed, aggrieved that Donna got such a generous share, and charged that the chancellor erred in failing to make sufficient findings of Donna’s adultery.

Judge Maxwell’s opinion sets out the applicable law about as clearly as can be done:

In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009) (citing Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss. 1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So. 2d 1004, 1013-14 (¶26) (Miss. 2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So. 3d 1251, 1264 (¶45) (Miss. Ct. App. 2009). Rather, we examine the chancellor’s judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶52).

In Carrow v. Carrow, 642 So. 2d 901, 905 (Miss. 1994), the Mississippi Supreme Court held that a chancellor erred in finding a wife’s “adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce.” The Carrow court instructed that chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. See id. at 904 (citing Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994)). Rather, “marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Id. at 904-05 (citing Ferguson, 639 So. 2d at 927).

The court found that the chancellor had, indeed, taken into consideration Donna’s fault when he considered the Ferguson factor dealing with the parties’ relative contributions to the stability and harmony of the marriage. The chancellor had found under that factor that:

“Neither Jimmie nor Donna did all they could to provide stability and harmony to the family. Donna became infatuated with another man and her romantic relationship with this third party caused the dissolution of the marriage.”

So here are a few points to ponder about this decision:

  • The rule that equitable division does not require an equal division, but only a fair division, is alive and well.
  • A 90-10 split in equitable distribution will be found fair if the judge addresses all of the Ferguson factors and justifies the decision.
  • The judge is only required to address all of the Ferguson factors, not to analyze them in excruciating, lengthy detail. In this case, the chancellor’s two-sentence recitation was found adequate to support the award.

This case reminded me of the student who got a 90 on a test and wanted the teacher to re-grade it in hopes of an even better grade. Jimmie Lee’s “grade” stayed the same after the appeal, but it’s somewhat of a head-scratcher why he appealed in the first place, given the pretty clear holding in the Carrow case.

AUTOMATIC MODIFICATION OF CHILD CUSTODY

August 23, 2011 § 2 Comments

You are representing your client in an irreconcilable differences divorce, and the long-awaited PSA has arrived in the mail from counsel opposite. Here are the provisions dealing with custody:

(g) So as to insure a fit and proper environment for the rearing of the minor children, the parties agree that in the event there is a scintilla of evidence of unmarried sexual activity by wife where the minor children are residing or in the vicinity of the minor children, wife shall immediately forfeit and be divested of all custody rights with respect to the minor children, custody of the minor children thereupon automatically vesting in husband, subject only the right of wife to have reasonable visitation with the minor children at reasonable times and places.

(h) In furtherance of the concept of a “home base” hereinabove discussed, the parties agree that the children shall reside in the Columbus, Mississippi area. Wife agrees to give husband sixty (60) days advance written notice of any intended relocation. Unless both parties agree that the children may be removed from the Columbus, Mississippi area to this new location, wife shall be divested of custody of the minor children upon such relocation and custody shall thereupon be vested in husband subject to further orders of the Court. Wife shall have the right to reasonable visitation with the minor children at all reasonable times and places during this period until the matter is finally determined by the Court.

(i) During the portion of the year in which the children reside with wife, wife agrees to give husband advance notice of any trips she plans out of the town of Columbus, Mississippi and further agrees to limit any out of Columbus, Mississippi trips to not more than three nights and to provide husband with information regarding her destination and location so as to afford him a basis to communicate with her if necessary. Furthermore, during such out of town trips, husband, at his option, shall have the right to have custody of the minor children.

It looks pretty much like what your client has told you was her agreement. She and her soon-to-be ex want the children to have some stability, and she wants this divorce over so she can get on with her life. If that’s what her husband wants, she is willing to agree to it just to get this over with.

Subparagraph (g) would effect an immediate change in custody in the event that your client engaged in unmarried sexual activity “where the children are residing” or in their vicinity, and the burden of proof would be a “scintilla of evidence,” a humble standard by any measure.

Subparagraph (h) would create an automatic modification of custody if your client relocates from the Columbus, Mississippi, area.

Subparagraph (i) essentially provides that unless the father gives your client permission to take the children out of town for longer than tree nights, she must give him custody for the duration of such trips.

What is your advice to her?

Check out the case of McManus v. Howard, 569 So.2d 1213 (Miss. 1990). There, the parties had agreed to the very terms cited above, which were approved by the chancellor.  Later, the mother sought either a modification or an MRCP 57 declaratory judgment that the agreement was unenforceable as to subparagraphs (h) and (i). It appears that neither party injected subparagraph (g) into the litigation, but one can speculate that it was a tactical decision by counsel to avoid an appearance of wanting to promote or condone inappropriate activity. The MSSC did not explain why it referenced the provision in its opinion.

The chancellor denied modification for the reason that the material change-adverse effect-best interest test had not been met. He denied declaratory judgment on the ground that the parties had contracted for the custodial arrangement, and their contractual agreement should be enforced.

In the MSSC opinion, Justice Blass wrote (at page 1216):

“Being given jurisdiction by Miss.Code Ann. 93-5-24(6) (Supp.1990) and the children being wards of the state, Tighe v. Moore, 246 Miss. 649, 666, 151 So.2d 910, 917 (1963) and there being an ample body of the case law for the guidance of the court, Arnold v. Conwill, 562 So.2d 97, 99 (Miss.1990); Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss.1986), the court simply cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. We hold such an Agreement to be void and contrary to public policy. We have recently considered a similar problem and have reached the same conclusion. Bell v. Bell, No. 89-1108 (Miss. Oct. 3, 1990). Accordingly, we reverse, and grant judgment here for the declaratory judgment as to later sub-paragraphs 2(h) and 2(i). No other matters were submitted to this Court by the appeal.

The Bell case cited by the court found unenforceable an agreement between the parties under which the children were required to live in Tupelo until majority, and the relocation of the custodial parent would trigger an automatic modification of custody. Bell v. Bell, 572 So.2d 841, 845 (Miss. 1990). 

The MSSC in McManus held that subparagraphs (h) and (i) above were unenforceable and reversed the chancellor’s ruling. There was no mention of subparagraph (g), because it was not a part of the underlying suit and was not raised on appeal, but the court’s rationale would apply to it as well, in my opinion.

It was my experience as a practitioner that parties occasionally wanted to include similar provisions in their PSA’s. Our chancellors would not approve an agreement that included the language, and I so advised my clients.

EMANCIPATION TODAY

August 22, 2011 § 9 Comments

Emancipation occurs when a child has attained a status in which he or she is no longer entitled to parental support and control. The law of emancipation has undergone many changes in the last few decades.

MCA § 93-11-65 (8) now sets out the statutory bases for an adjudication of emancipation. There are two categories of emancipation. Category One requires a finding of emancipation upon the occurrence of any of the enumerated facts. Category Two cases allow the court in its discretion to find emancipation on proof of any of the enumerated facts.

Category One. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:

  1. Attains 21 years of age, or
  2. Marries, or
  3. Joins the military and serves full-time, or
  4. Is convicted of a felony and sentenced to two years or more.

Category Two. The court may determine that emancipation has occurred, unless otherwise provided in the underlying child support judgment, if the court finds that the child:

  1. Has attained the age of 18 years and has discontinued full-time enrollment in school, unless the child is disabled, or
  2. Voluntarily moved from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors before reaching the age of 21, or
  3. Cohabits with another person without approval of the parent obligated to pay child support.

The statute also provides that child support for an unemancipated child who is incarcerated is suspended during the period of incarceration.

In Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss. 1991), the court stated:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.  

In the case of Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss. 1998), the MSSC stated that the statute enlarges, but does not diminish, the Caldwell definition. In other words, the courts are not limited to the statutory language in determining emancipation. Putting the Caldwell definition together with the statute, it appears that the court has discretion to find that proof of emancipation facts under Category Two will not necessarily emancipate the child if the court determines that the child’s situation does not satisfy the Caldwell definition of emancipation.  On the other hand, the trial court has no discretion under the Category One facts. 

The Rennie court also announced the rule that the child gets “one bite of the apple,” and that a child once emancipated may not be unemancipated once the conditions that gave rise to the emancipation no longer exist. See also, Crow v. Crow, 662 So.2d 1226, 1228-30 (Miss. 1993). 

It is the child support payor’s duty to bring the issue of emancipation to the attention of the court. Strack v. Sticklin, 959 So.2d 1, 6 (Miss. App. 2006). When the payor fails or delays in seeking relief from the court, as opposed to self-help, the decision whether to make the emancipation retroactive is left to the judge’s discretion. Houck v. Houck, 812 So.2d 1139, 1143 (Miss. App. 2002). But note that emancipation of one or more children does not necessarily reduce child support where the child support obligation is “global” rather than a sum per child. Wiles v. Williams, 845 So.2d 709, 711-12 (Miss. App. 2003).    

The language of the statute “Unless otherwise provided in the underlying child support judgment” is recognition of case law that provides that the parties may extend emancipation or provide other emancipation triggers by agreement. A typical example is where they agree that “college and child support shall continue until the child attains a bachelor’s degree or age 23, whichever occurs first.” The statutory language raises the question whether the court, without an agreement of the parties, could extend the Category One emancipation triggers in an adjudication of child support. I think not, given the shall language of Category One. But what about where the parties agree, in a consent for example, that the court will adjudicate the extent and duration of child support? An intriguing question, and I am not aware of any case law one way or the other.

NAME GAME

August 19, 2011 § Leave a comment

“What’s in a name? That which we call a rose

By any other name would smell as sweet.”

— Romeo and Juliet (II, ii, 1-2)

Mississippi chancery courts have jurisdiction pursuant to MCA § 93-17-1 ” … upon the petition of any person to alter the name of such person … ”

As you can probably imagine, most name changes are prosaic affairs involving restoration of a maiden name, or conforming a child’s surname to that of a parental figure, or even correcting spelling.

Some are not so mundane, though. I was presented with a name change that also sought to change the petitioner’s ethnicity. I did change the name, but drew the line at the ethnicity-change until the petitioner could present me with authority allowing me to do so. I’m still waiting.

A post in Futility Closet informs that in 1944, a San Francisco judge refused to let Tharnmidsbe L. Praghustspondgifcem change his name.

He’d asked to change it to Miswaldpornghuestficset Balstemdrigneshofwintpluasjof Wrandvaistplondqeskycrufemgeish.

The man, whose given name was Edward L. Hayes, had requested the first change in order “to do better in my business and economic affairs.” Evidently he felt he hadn’t gone far enough.

But the judge did.

I haven’t been presented with anything that outré — yet — but every day is a new day with new and unexpected challenges and exhilarations. Who knows what Monday will bring.

Have an interesting weekend.

NO UCCJEA ALLEGATIONS = NO JURISDICTION? NO.

August 18, 2011 § 3 Comments

Lawyers are all over the ballpark when it comes to the UCCJEA allegations required by MCA § 93-27-209. Some still use the old and now-repealed UCCJA provisions that have apparently fossilized in their computers. Some omit them entirely. Some use a hybrid. And some even plead the proper provisions.

What happens when you fail to plead the UCCJEA provisions either completely or inadequately? Does the court have jurisdiction?

The MSSC answered the question in White v. White, 26 So.3d 342, 346 (Miss. 2010), where the court said:

First, the chancery court’s jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. See Miss. Const. art. VI, § 159. Second, the plain language of Section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding.

This issue is not jurisdictional, was within the sound discretion of the chancellor, and this argument is without merit.

The court rejected the appellant’s reliance on Marr v. Adair, 841 So.2d 1195, 1202 (Miss. App. 2003), because that case was decided under the repealed UCCJA.

Remember that under White, although the recitation of the jurisdictional language is not mandatory for the court to exercise jurisdiction, you still have to prove that the court has jurisdiction under the UCCJEA. When the MSSC said that “This issue is not jurisdictional,” it was referring to the matter at hand, which was the sufficiency of the pleadings, and not to the substance of jurisdiction in the case. It’s an important distinction. See, Miller v. Mills, decided by the COA May 3, 2011; you can read a post about the case here.

I have had lawyers move to dismiss at the outset of trial for incomplete or missing UCCJEA affidavit. I always overrule that motion and offer a continuance for the purpose of filing one, but I’ve never had anyone take me up on it.

A QUESTION OF ATTORNEY’S FEES ON APPEAL

August 17, 2011 § 5 Comments

Ed McDonald filed for divorce from his wife, Cindy. Cindy counterclaimed for separate maintenance. The ultimate result was that the chancellor denied Ed a divorce and granted Cindy separate maintenance.

Ed did not pay as the court ordered, and he filed a motion to terminate the obligation. Cindy responded with a petition to hold Ed in contempt for non-payment of six months of separate maintenance. The chancellor rejected Ed’s plea to terminate the payments, found him in contempt, awarded Cindy a judgment for the arrearage, and ordered Ed to pay Cindy $1,000 in attorney’s fees based on the finding of contempt.  In making the attorney fee award, the trial judge stated:

“The finding of contempt in this matter as to the separate maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the inability to pay. Therefore, the Court orders [Ed] to pay $1,000 to [Cindy] as attorney’s fees for his failure to pay the monthly separate maintenance as ordered by this Court.”

Ed appealed both from the denial of termination of separate maintenance, and from the adjudication of contempt. In the case of McDonald v. McDonald, decided August 16, 2011, the COA affirmed the chancellor on the refusal to terminate separate maintenance and the adjudication of contempt.

Cindy, then, was the prevailing party in the appeal, and she asked the COA to award her an attorney’s fee for having to defend the appeal. Indeed, there is a long line of cases holding that the appellate court will award the prevailing party an appeal attorney’s fee in an amount equal to one-half that awarded by the trial judge. See, e.g., Quin v. Quin, 215 So.2d 414, 415 (Miss. 1968); Smith v. Smith, 293 So.2d 466, 469 (Miss. 1974); and Poole vs. Poole, 701 So.2d 813, 819 (Miss. 1997).

Based on the chancellor’s ruling on the attorney’s fee, Cindy would reasonably expect the COA to award her an attorney’s fee in the sum of $500 for prevailing in the appeal.

In this case, though, the COA brushed aside Cindy’s request with this language (at ¶17): “The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt ‘and not on the inability to pay.’ Because precedent dictates that attorney’s fees are based on ‘necessity and not entitlement,’ and the chancellor did not find that attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.”

The opinion cites Monroe v. Monroe, 745 So.2d 249, 253 (Miss. 1999) at ¶ 17, as authority for its statement that “attorney’s fees are based on necessity rather than entitlement.” Monroe is the only case cited by the court. Monroe was a divorce case in which the MSSC reversed and rendered on a finding that Mrs. Monroe had been denied alimony improperly. It was not a contempt case. The court found that Mrs. Monroe was not entitled to attorney’s fees on appeal because she did not prove inability to pay. I’ve posted here before about the necessity to prove inability to pay to support an award of attorney’s fees in non-contempt actions.

The rule is different in contempt actions, however. A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action.  Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006). It is not even necessary for the McKee factors to be proven in a contempt case. Mixon v. Mixon, 724 So.2d 956, 964 (Miss. App. 1998). Attorney’s fees are properly assessed against a party found to be in contempt, Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993), to compensate the party wronged for having to retain counsel.

In Bounds, the COA spelled out the distinction:

Sam’s argument fails to differentiate awarding attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486 (Miss.2005), the court addressed this issue. The trial court held a mother in contempt for failure to return the children to the father’s custody. Like Sam, the mother contended that the attorney’s fees the court awarded to the father for the contempt action were unreasonable because the court did not use the McKee factors. The general rule in divorce and child custody actions is that appropriate attorney’s fees should be awarded in an amount to secure a competent attorney. Id. at 490(13). However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id. (citing Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss.1995)). “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Elliott, 775 So.2d at 1290(25).

It looks to me like the chancellor in McDonald properly assessed attorney’s fees based on the sanction for contempt, as he was permitted to do under the great weight of authority. The chancellor was not required to find inability to pay. Why, then, was the customary appellate fee disallowed under a standard different than that which applied in the trial court? Ed appealed from the contempt finding and Cindy prevailed on the appeal. Should she not have been entitled to the customary one-half attorney fee award to the prevailing party?

I hope this decision does not mean that in contempt actions parties will have to put on proof of inability to pay purely in anticipation of an appeal, since that finding is not necessary for the trial judge to assess a fee on a finding of contempt. It’s irrational to me for one standard to apply at trial and another on appeal.

Cindy is only out $500 in this case, but what if the fees had been $12,500? Something else to think about as you go about making your trial court record in a contempt case.

WHAT DOES IT TAKE TO SATISFY THE DILIGENT INQUIRY REQUIREMENT OF MRCP 4?

August 16, 2011 § 2 Comments

We’ve talked here, here and here about MRCP 4 and its requirements for obtaining process by publication. The prerequisite to any process by publication is “diligent inquiry” to discover whether the party is to be found in Mississippi, and, if not, her post office address.

No process by publication can issue until there is an affidavit filed stating that diligent inquiry has been made. The one who claims to have made the inquiry is required to testify to the efforts involved. It is in the court’s discretion to determine whether the inquiry was indeed diligent.

So what exactly is diligent inquiry? To what extent is a party required to search out the whereabouts of the opposing party? I will confess to a certain degree of inconsistency on this issue on my part, due primarily to the fact that in Mississippi we do not have a template of authority or guidelines to go by. I do always question the witness about measures taken, and I am usually satisfied that he or she has done all that can be done.

Recently, it came to my attention that Florida has a form certificate of diligent inquiry that is required in all such cases. The affiant must check all of the categories of effort that apply. Here are the guts of the Florida certificate:

  • United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
  • Last known employment of respondent, including name and address of employer. You should also ask for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then for any addresses to which any pension or plan payment is and/or has been mailed.
  • Unions from which respondent may have worked or that governed particular trade or craft.
  • Regulatory agencies, including professional or occupational licensing.
  • Names and addresses of relatives and contacts with those relatives, and inquiry as to respondent’s last known address. You are to follow up any leads of any addresses where respondent may have moved. Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces, nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
  • Information about the respondent’s possible death and, if dead, the date and location of the death.
  • Telephone listings in the last known locations of respondent’s residence.
  • Internet at http://www.switchboard.com or other internet people finder.
  • Law enforcement arrest and/or criminal records in the last known residential area of respondent.
  • Highway Patrol records in the state of respondent’s last known address.
  • Department of Motor Vehicle records in the state of respondent’s last known address.
  • Department of Corrections records in the state of respondent’s last known address.
  • Title IV-D (child support enforcement) agency records in the state of respondent’s last known address.
  • Hospitals in the last known area of respondent’s residence.
  • Utility companies, which include water, sewer, cable TV, and electric, in the last known area of respondent’s residence.
  • Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about respondent.

Some of these measures seem somewhat extravagant to me; a Freedom of Information Act request, for example, seems a bit much. Certain other listed measures would be futile due to privacy and HIPAA concerns, in my opinion.

The list, though, does have much to commend it in that it illustrates the extent of information available to find someone. In the era of internet, with Google and the like, the old “I asked his momma and she doesn’t know where he is” just doesn’t cut it anymore. The more extensive the search, the more different measures employed, the more likely it is that the court will find the effort to have been diligent.

I heard an uncontested divorce a while back in which the plaintiff had published process based on a claim that she did not know where the defendant was, and was not to be found in Mississippi. She testified about all the relatives she had talked to who claimed not to know where he was, either. In the course of her testimony, she let slip that the last she had known he was in prison in Texas. I interrupted and asked how long his prison term was, and she responded that he should still be there because he had been sentenced to something like 20 years. I pointed out to the attorney that of all people on the planet a prisoner should be among the easiest to locate, and I continued the hearing to a later date for that purpose. The attorney easily located the man on the internet, and she and her client returned to court a couple of months later and proceeded on personal process. 

My suggestion is that you don’t file that diligent inquiry affidavit unless and until you are satisfied that your client has, indeed, made a bona fide effort to locate the other party. You may wind up doing some of the work yourself.

PROCESS F*A*I*L

August 15, 2011 § Leave a comment

What difference does it make whether the other party has the right form of process if he had actual notice?

Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:

Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.

On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.

On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.

The COA reversed, and here are the important points:

  • MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 16) (Miss. App. 2002).
  • Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
  • In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
  • Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759.
  • Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).

In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A.  The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.

The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.

The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, … [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).

The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.

Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:

Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).

As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.

Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.

I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.

The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.

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