DICTA

July 8, 2011 § Leave a comment

  • We’ve talked before about the increasingly negative ROI for law school grads, and just when the picture looks its bleakest comes the news that some law schools are considering the “private funding model.” That’s fancy academic-ese for “We are going to increase the tuition out of sight because the state has underfunded us for the nth year in a row.” Using this approach, the school eschews state money and generates its own budget. The University of Minnesota Law School is considering it.
  • Who profited from the Fed’s quantitative easing, and who lost?   
  • New Orleans ephemera: some haunting images of Lost Big Easy.
  • NPR reports that there is much movement by both sides in the federal debt ceiling debate that must be resolved before July 22. 
  • Preservation in Mississippi (MissPres) has a fascinating piece on the the second battleship U.S.S. Mississippi, the figurehead of which rests on the grounds of the State Capitol in Jackson. In the course of uncovering its history, the blog discovers a mystery. If you’re a history geek like I am, you owe it to yourself to check out MissPres.
  • Hardworking Americans who make between about $40,000 and $120,000 a year currently are paying the freight for operation of the federal government. Everyone else gets a more-or-less free ride. It hasn’t always been that way, as this historical graph of the tax burden shows. 

    U.S.S. Mississippi, 1905-1914

THE DISAPPEARANCE OF MARRIAGE

July 7, 2011 § 1 Comment

In its issue of June 25, 2011, The Economist offers some arresting insights into the state of marriage in our nation that bear reflection by lawyers and judges who deal with family issues.  Some of the article’s points:    

  • Married couples, for the first time, now make up less than half (45%) of all households.
  • In every state the numbers of unmarried couples, childless households and single-person households are growing faster than those comprised of married people with children, according to the 2010 census. Married couples with children comprised 43% of households in 1950; they now account for just 20%.
  • Traditional marriage has evolved over the past 50 years from a near-universal rite to a luxury for the educated and affluent. In 1960, only four percentage points separated the wedded ways of college and high-school graduates (76% versus 72%). The gap has since widened to 16 percentage points, according to the Pew Research Center. A Census Bureau analysis released this spring found that brides are significantly more likely to have a college degree than they were in the mid-1990s.
  • The divorce rate has been declining as the marriage rate has been declining.  The National Marriage Project at the University of Virginia in Charlottesville has studied the phenomena and concluded that both declines are due to the fact that marriages are becoming more and more selective. The project also found that divorce rates for couples with college degrees are only a third as high as for those with a high-school education.
  • Americans with a high-school diploma or less (who account for 58% of the population) tell researchers they would like to marry, but do not believe they can afford it. Instead, they raise children out of wedlock.
  • Only 6% of children born to college-educated mothers were born outside marriage, according to the National Marriage Project. That compares with 44% of babies born to mothers whose education ended with high school. “Less marriage means less income and more poverty,” reckons Isabel Sawhill, a senior fellow at the Brookings Institution. She and other researchers have linked as much as half of the income inequality in America to changes in family composition: single-parent families (mostly those with a high-school degree or less) are getting poorer while married couples (with educations and dual incomes) are increasingly well-off. “This is a striking gap that is not well understood by the public,” she says.

There are implications here that reach far beyond mere economic considerations. Are we witnessing the degeneration of the American Middle Class, with its credal optimism grounded in family, economic opportunity, improvement, education and hard work? The American mantra at least since the 1930’s has been that the next generation will be better off than this one, and so on and on to infinity; the data suggests that principle is dead or dying.

Single parents have less income at their disposal than do married couples living together. Single mothers often live at or near poverty level. Children raised in poverty or near poverty have fewer opportunities to better themselves, and are more likely to pass their accustomed way of life on to their children.

The negative impact on children of being fatherless has been well documented. 

The sociology behind these developments is beyond the scope of this blog. It’s important, however, for us to be aware of the forces that affect the lives of those who pass through our courts.

A LESS-THAN-FINAL JUDGMENT

July 6, 2011 § 3 Comments

It sometimes happens that the chancellor grants some of the relief requested, saying in effect, “That’s all I’m going to do,” and directs entry of a final judgment.  It happens, for instance, where one party asks for an award of attorney’s fees and the court does not want to grant it, or where one party in a divorce wants the living room furniture that the other party has and the judge leaves things as they are. You can conjure up some similar scenarios.

The question is: when the judge does that, is there a final, appealable judgment?

The COA addressed what is not a final, appealable judgment in two recent decisions handed down the same day.

In Jackson v. Lowe, decided June 28, 2011, the COA answered the question by reference to MRCP 54(b), which states:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Jackson, the court held that since the chacellor’s decision did not address several issues and did not certify that it was a final judgment as to the issues adjudicated, it was an interlocutory judgment that was not appealable, and until the parties saw to it that all issues had been addressed, there was no jurisdiction for an appeal. 

A similar result was reached in S.E.B. v. R.E.B. decided June 28, 2011, in which the chancellor flatly refused to adjudicate alimony and child support.

What the COA is telling you is that unless the trial court’s judgment addresses every claim, or unless you have a Rule 54(b) certificate from the trial judge, you are going nowhere on appeal until you do.

I posted here about some of the nuances of Rule 54(b), and you might want to take a look at the post again.

I have almost always included a paragraph in my judgments that states to the effect that “The court has considered all other issues and prayers for relief asserted by the parties and finds that they should be denied and no further relief granted.” I do not know whether that will suffice as an adjudication, and after the S.E.B. decision, I’m not so sure; no one has ever raised the issue. Of course, I use that only for miscellaneous issues that do not have trial factors because failure to address applicable trial factors is reversible error. I also have included a Rule 52(b) certificate in appropriate cases.

Moral of the story: If you are not satisfied that the chancellor has met the requirements of Rule 52(b), be sure to file the proper motion for a certificate, and do it timely. If you are outside the 10-day requirement of Rule 59, you might want to file a motion to set the remaining issues for trial. Yes, this will likely steam up your judge, who probably figured your case was concluded, but just smile and show her a copy of Jackson v. Lowe, and maybe everything will be all right.      

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

WE HOLD THESE TRUTHS …

July 3, 2011 § Leave a comment

Please allow me to tell you about an experience I had that comes to mind every July 4, an experience that made literally true for me the phrase, “We hold these truths …”

Several years ago my daughter Aimée was living in Boston and working at the Massachusetts Historical Society. On one of our visits, she invited Lisa and me to visit her place of work, around the corner from hallowed Fenway Park, which has its own impressive history. Our son Mark, who was in school in Boston, joined us.

In the Society building, we saw the expected reading rooms where scholars pored over obscure texts. There were artifacts and oil portraits, many invaluable and irreplaceable. There were rooms of antique books and maps. Four or five floors of scholarship steeped in history.

We were introduced to Peter Drummey, Librarian of the Society. Peter is acknowledged by David McCullough in his book, 1776, as ” … the incomparably knowledgeable Librarian of the Massachusetts Historical Society …” for his help in reviewing the manuscript and suggesting revisions. Peter graciously took us in tow and shared his encyclopedic knowledge of early American history and the priceless collections stored in the building.

As we wound upward in the building, we moved from one mind-bendingly impressive item to another. Here in the cradle of the American Revolution, we were standing in the presence of some of its most cherished sacramentals.

On the uppermost floor, we came to a locked door, and Peter pulled out a ring of keys. We entered the room and passed among rows of library stacks until we arrived at a locked gate in an iron-grate, fence-like wall behind which we could see many books, manuscripts and other items.

Peter explained that this gated area protected the most rare and valuable works in the entire collection. Here he showed us some remarkable items. There was the entire, original, handwritten journal of the acerbic John Quincy Adams, documenting every day of his life from youth to his death. There were breathtaking, hand-colored sketches by American plains Indians depicting buffalo hunts, Indians in full regalia riding horseback, and Indian warriors in combat with Anglo soldiers. There was Thomas Jefferson’s day book, which included entries about selling slaves and buying various provisions; On July 4, 1776, the entry related the purchase of some gloves. On another day, the supreme rationalist’s entry noted only that on that day his mother had died.

Independence Hall, Philadelphia

Peter reached up and took down two manuscript boxes, opening one. He reached in, pulled out a piece of a parchment-like paper and offered it to me. Noting my reluctance, he encouraged me to take it in hand, assuring me that it was chemically treated so that handling it would not harm it in any way. I took the document and examined it. It was about 7″ x 5″, and was covered in almost microscopic writing. There were interlineations and lined-through words and phrases. The first line grabbed my eye: “When in the course of human events …” I looked questioningly at Peter and before I could ask he said, “You are holding Thomas Jefferson’s original handwritten notes of the negotiations leading to the drafting of the Declaration of Independence.” He explained that each of the five committee members charged with creating the document kept his own set of notes so as to keep track as ideas developed and to record his own ideas for further discussion. I could scarcely believe that I was looking at, much less handling, a document created by Thomas Jefferson himself. As I peered at it, Peter reached in the other manuscript box and pulled out a slightly smaller document, about 5″x 6″. It had the same kind of cramped handwriting and corrections. Peter handed it to me, and I noted that it bore the same phrase as Jefferson’s “When in the course …” Peter answered my unasked question: “John Adams’ handwritten notes.”

I can not catalogue all the emotions I felt as I held in my own hands these two ordinary-looking pages of notes that were anything but ordinary. They played a not-so-minor role in an event that changed the world and continues to reverberate through history even more than 230 years after the fact. I was awe-struck, of course, but mostly I felt a sense of how unfathomably remarkable and extraordinary were these two men who took care to get it right, knowing as they must have that the pronouncement they were fashioning must say exactly what needs to be said because it would live for many years thereafter. These were the self-recorded thoughts of two of the eyewitnesses to and participants in the creation of the republic.

I passed the two pages on to Lisa, Aimée and Mark, and they were as moved as I had been. We held in our hands these sacred papers that recorded profound truths.

This is what comes to my mind every July 4, the day we commemorate the signing of the Declaration of Independence. It’s the kind of experience that stays with you. It’s the kind of experience that gives fresh meaning to the words, “We hold these truths …”

“QUOTE UNQUOTE”

July 1, 2011 § Leave a comment

“Believe those who are seeking the truth.  Doubt those who find it.”

“The color of truth is gray.”

“The want of logic annoys. Too much logic bores. Life eludes logic, and everything that logic alone constructs remains artificial and forced.”

—  André Gide

WHAT, ME WORRY?

June 30, 2011 § 6 Comments

Newman

It was the philosopher Alfred E. Newman who coined the epigram, “What, me Worry?”  I suspect he also came up with the fallacious thought that “What you don’t know can’t hurt you,” which as any lawyer can tell you, is tragically and dangerously untrue.

Take as a case in point Ivison v. Ivison, 762 So.2d 219 (Miss. 2000).  Mrs. Ivison got the former marital residence in the divorce, and the ex-husband paid the mortgage notes.  The husband deducted the payments because he was advised that payments made to a third party on behalf of another are treated as alimony and are deductible, if they are mandated in a divorce judgment or property settlement agreement and meet the other criteria for alimony.  Mr. Ivison took the deduction, and Mrs. Ivison got a nice, but businesslike letter from the IRS explaining that they wanted her to pony up the income taxes, which were in an amount significant enough to give Mrs. Ivison a bad case of hiccups and send her scurrying to court.

Mrs. Ivison complained to the chancellor that she had not been advised by her attorney at the time that the payments were going to be treated as income, and that she would never have agreed to the divorce settlement had she known.  She convinced the sympathetic chancellor that the ex-husband, and not she, should have to pay the taxes.  She got her modification.

On appeal, the MSSC reversed and rendered.  The opinion pointed out that the applicable tax law had been in effect at the time of the divorce, so the situation did not constitute a material change in circumstances.  The court also held that ignorance of the law, and particularly in this case tax law, is not a reason to modify.

I do not know what happened to the attorney who did not advise Mrs. Ivison.  I hope he or she had enough malpractice insurance coverage to weather the storm.  This was truly a case where what you don’t know can indeed hurt you.  And to put it even more pointedly:  What your client does not know that you should have advised her about can indeed hurt you.

ANOTHER UNSUCCESSFUL ASSAULT ON THE NATURAL PARENT PRESUMPTION

June 29, 2011 § 1 Comment

It is axiomatic that as between a natural parent and a third party, it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994). This natural parent presumption over third-party custody has been the subject of prior posts here and here.

In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the supreme court reversed a chancellor’s ruling that a temporary agreement to change custody was enough to overcome the presumption.  In Wells v. Smith, decided May 31, 2011, by the COA, the appellate court rejected in loco parentis as a basis to overcome the presumption.

In Brown v. Hargrave, decided June 28, 2011, the COA rejected yet another assault on the presumption, this time based on the judge’s finding that the totality of the circumstances and the plaintiff’s long-term care of the child.  Relying again on Vaughn v. Davis, the found that the trial judge applied an incorrect legal standard, and sent the case back to the chancellor for a rehearing to determine whether some other basis exists to overcome the presumption.

I’m going to take up for the chancellor in this one so as to make an important point. Chancellors are sometimes (too often I might add) confronted with a situation in which it is obvious that one party has no business with custody of the child, and that the child would be far better off with the other party. The problem is that the case is sloppily tried, points are not made in the record, evidence is not introduced, and the chancellor is left with having to do what he or she fervently believes to be in the best interest of the child without an adequate supporting record. The usual result is a remand, or, in some cases a rendered reversal.

If you don’t want to snatch defeat from the jaws of victory, put on as strong a case of unfitness as you can muster. Put on proof of circumstances that are strong enough to rise to the level of abandonment. Make as strong a case as you can. If you leave the judge without much to hang his decision on, it may end up that your client is the unhappy one.

Q & A ON SOCIAL SECURITY’S INTERACTION WITH CHILD SUPPORT

June 28, 2011 § 2 Comments

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $250 a month from social security due to the father’s disability.  What is the effect of  social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation.  Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982). In this case, since the social security benefit is less than the support obligation, the father will receive credit for the $250 social security payment and will owe the $50 monthly difference.  

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from social security due to the father’s disability.  What is the effect of social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation, and any amount in excess is a gratuity to the child.  Mooneyham at 1074. 

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from supplemental security income (SSI) due to the child’s disability.  What is the effect of the SSI on the father’s obligation?

A:  None. Receipt by the child of SSI payments does not reduce the parental support obligation. Hammett v. Woods, 602 So.2d 825, 828 (Miss. 1992). The same result should apply to any form of benefit received by the child that is generated by the the child or someone other than the child-support-obligated parent.

An interesting twist on this principle appeared in the case of Bradley v. Holmes, 561 So.2d 1034 (Miss. 1990). The father began receiving social security and requested the mother to file for the child to receive benefits on his account. The mother instead filed for and received benefits for the child through the child’s step-father’s account because the benefits were higher. The father petitoned the court to eliminate his child support payments because the mother could have used his account to pay the support, but she elected to use another’s entitlement.  The supreme court agreed an held that the father’s obligation was extinguished because the step-father-derived benefits exceeded the amount of the father’s child support obligation.  

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued after his disability date, and the child receives a lump-sum payment from social security based on the father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

A:  Chapman v. Ward, 3 So.3d 790, 799 (Miss. App. 2009), and Keith v. Purvis, 982 So.2d 1033, 1038 (Miss. App. 2008), addressed this issue. Read in combination, they appear to hold that the father may have no credit, but the legislature might have altered that rule. Here is what the legislative drafting office provided us at the Judges’ Spring Conference about an amendment to MCA § 93-11-71, to take effect July 1, 2011: “Section 93-11-71 is further amended to provide that the parent who is in arrears on child support payments and who receives Social Security Disability insurance benefits for the support of that child or children will receive credit on the arrearage if it accrued after the date of the disability.”  Rooting that principle out of the chapter laws, or even the express language upon which the statement might be based, has been an insuperable challenge for me so far, so I will withhold a categorical statement as to what the new law might provide, so I will withhold jumping in until I receive my advance sheets. In the meantime, if you have this issue come up after July 1, I urge you to do your own research to protect your client’s interests.

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued before his disability date, and the child receives a lump-sum payment from social security based on father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

A:  It would appear both from the case law and the revised statute that the father has no protection or relief in this circumstance.

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 9 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. 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. Ct. App. 2002) (internal citation omitted). 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 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). 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.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

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