GUARDIAN OR CONSERVATOR?
May 12, 2011 § 15 Comments
What is the difference between an adult guardianship and a conservatorship? The difference can significantly impact the course that the case takes, as illustrated by the decision in In the Matter of the Guardianship of Frank Lewis, a COA case decided October 5, 2010, that is the subject of this previous post.
I ran across this language from the case of Harvey v. Meador, 459 So.2d 288, 291-92 (Miss. 1984), that provides a general background:
“Initially, it is appropriate to distinguish guardianships from conservatorships. Guardians may be appointed for minors; incompetent adults; a person of unsound mind; alcoholics or drug addicts; convicts in the penitentiary; persons in the armed forces or merchant swamen reprted as missing; or for veterans; or minor wards of a veteran.
“The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction. A ward under guardianship is under a legal disability or is adjudged incompetent.
“In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships. But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.
“Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reasons of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates.
“Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis. This additional procedure was intended to encompass a broader class of people than just the incompetent.
“Therefore, the distinguishing feature of conservatorship from guardianship lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation. After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same. However, the status of the ward in each arrangement is different.”
How the status of the ward is different under each arrangement is a matter for another post.
WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]
May 11, 2011 § 3 Comments
When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal? Do you need to track down a judge for an emergency hearing on the objection? What do you need to do to protect your client after you file the objection?
Nothing. MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action. It’s right there in the rule, in black and white.
This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point. Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about. I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.
Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department. No one appeared for the defendant agency. That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” Really? Didn’t know that.
In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line. One thing she made us do was to keep an open dictionary on the desk before us as we read a book. Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps. At first I complied to avoid the pain. Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.
Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection. And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it. Okay, I’m kidding about that last part.
Of course, my point applies to the statutes and cases, too. How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship? How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?
I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing. Which category will you place yourself in?
THAT CERTAIN “JE NE SAIS QUOI”
May 10, 2011 § 2 Comments
If you’ve ever tried a case with a LEP, you know just how excruciatingly difficult it can be without the right help. Excuse me? You don’t know what a LEP is? Well, a LEP is neither contagious nor a Biblical outcast. LEP is jargon for a person who has Limited English Proficiency. That is, they have trouble speaking and understanding English, which, naturally, is quite an impediment in a Mississippi court.
In my experience practicing law, I tried a number of cases in Choctaw Tribal Court where every case involved one LEP, and sometimes a full cast of LEP’s. You would ask a question and the designated interpreter would repeat the question in Choctaw to the witness. The interpreter would listen studiously as the witness droned on in reply for several minutes, whereupon the interpreter would say earnestly, “He said no.” I have always suspected that something had been lost in the translation.
I tried a memorably hilarious case once against a local attorney who later gave up the law to become rich as a stockbroker, probably in no small part due to this case. My client was a more or less LEP European-trained, ethnic Chinese physician from Indonesia, and the opposing party was a completely LEP Chinese PhD student from Beijing who was studying at the University of X___g__n__c__ao (I never got that one straight, which I guess makes me a LCP). She had come to this country to attempt a reconciliation with her husband, my client, but the attempted reconciliation unhappily failed, propelling them to court that day for a temporary hearing. Our “translator” spoke and understood one particular strain of Chinese, and neither party spoke or understood the same strain. To compound the comedy, it was the court reporter’s first, nervous day on the job — straight out of the Ole Miss court reporting school. She almost broke down in tears when my client was asked where he graduated from medical school, and in his proudest Chinese-flavored German, he responded “Heinrich Heine Universität, Universitätsklinikum, Düsseldorf, Chermany.” Who wouldn’t be proud of that? We stumbled along until the trial’s dramatic crescendo, which occurred when the opposing party futiley tried repeatedly to describe how her piece-of-junk car would not work. She finally blurted out in LEP exasperation, “Cah no vroom,” while twisting her right hand in a key-in-ignition fashion. We all pretty much understood that, LEP or no LEP. In fact, it was the most understandable thing any witness or interpreter said that day.
All of which brings me at last to my point. The Administrative Office of Courts (AOC) is seeking comments on proposed rules for use of interpreters in the courts. The goal is state-wide credentialing of certified interpreters, with a roster available for all chancery, circuit, county, youth, municipal and justice courts, as well as grand juries. You can access the announcement and links here. As for the philosophy behind it, AOC said:
“It is essential that any communication barrier be removed, as far as possible, so that these limited English proficiency (LEP) individuals are placed on equal footing with similarly situated persons for whom there is no such barrier. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice. As officers of the court, interpreters help assure that LEP individuals enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively.”
Translation: “We need qualified interpreters when we have persons in court who do not speak or understand English well.”
Based on my years in chancery court, I am wondering whether we need also to have interpreters for our own fellow citizens who do not speak any recognized foreign tongue, but are LEP’ed in their ability to speak or understand plain English. But I guess that’s a project further down the road, to be tackled after we have dealt with the aliens in our midst.
TENDER YEARS DOCTRINE CONTINUES TO WANE
May 9, 2011 § 4 Comments
It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879). The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.
As late as the 1980’s, the tender years doctrine exerted its hegemony. One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore. From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved. A Kramer vs Kramer-type situation, for sure. The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.
An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.”
Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest. Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.
In the years since, the doctrine has weakened further. In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others. In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father. In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years. In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.
In 2000, MCA § 93-5-24 was amended to add this language as subsection (7): “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.”
Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party. The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father. The mother argued that the child was of tender years, and that she should have been favored. The COA rejected her argument and upheld the chancellor’s award.
If the tender years doctrine is not dead, it is at least moribund. If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position. Custody will be awarded to the fit parent who prevails on the Albright factors.
MC LAW HITS A HOME RUN
May 6, 2011 § 1 Comment
Kudos to the MC Law School for a project that is a significant contribution to the bench and bar in Mississippi.
Click on this link to access the Mississippi College Judicial Data Project, an impressive site where you can access information about Mississippi appellate cases, including:
- Videos of oral arguments. Currently on the supreme court web site, only recent arguments can be accessed, and they are taken down to make room for more current sessions. The MC web site will archive all those arguments, so that you may view them. Imagine being able to learn the kinds of questions and interaction with the court that you can expect in a similar case, or to observe the kinds of inquiries that your same panel has made in other cases.
- Briefs. You can get copies of briefs in .pdf format to download, print and use. This is the kind of information that has been only accessible through costly online legal research programs that many lawyers can not afford. Briefs can help you with your own appeals and even serve as a resource for your trial work.
- Statistics. Through a sophisticated search engine offering more than 30 search options, you can research questions such as: how many times has Justice Kitchens concurred with Chief Justice Waller?; or how many trials presided over by Chancery Judge David Clark in Scott County have been affirmed by the court of appeals?; or even how many summary judgment rulings by Chancellor Jerry Mason have been affirmed by the court of appeals but reversed and remanded by the supreme court? The results are returned in the form of a table listing the decisions reflecting the response, and the cases listed can be accessed by clicking on the case name. It’s an incredibly agile and sophisticated program that yields detailed, accurate results.
The project is in the process of being updated. The video archive is current from 2004 to 2011. The brief archive is current from 2007 to 2011. The statistics are current from 2007 to 2011. The goal is to take all of the accessible information back through 2000.
There are several other pages of information that you might find useful.
Mississippi College School of Law deserves a round of applause for this powerful and useful addition to the array of Mississippi trial and appellate resources.
A JURISDICTIONAL BOOMERANG
May 5, 2011 § 1 Comment
We sometimes are not as attentive to the requirements of the UCCJEA as we should be. Take the following case, for example:
Delisa Miller and Ryan Mills began living together in Madison Parish, Louisiana, in 2005. They had two children, a son born in 2007, and a daughter born in 2008. Ryan went to prison in December 2008, at which time Delisa and the children moved to Vicksburg, Mississippi, according to Ryan’s pleadings.
On July 14, 2009, after he was released, Ryan filed pleadings in Louisiana to establish parentage, for custody, and for visitation. His pleading recited that, although Delisa was residing in Mississippi, her domicile remained in Louisiana. On July 23, 2009, Delisa filed a petition for custody in the County Court of Warren County, Mississippi. Her case was referred to Warren County Youth Court, which dismissed it on the basis that Louisiana already was exercising jurisdiction.
On August 3, 2009, the Louisiana court held a hearing in Delisa’s absence, finding that it had jurisdiction under Louisiana’s long-arm statute, and granted Ryan visitation.
Ryan filed pleadings in the Chancery Court of Warren County seeking to register the Louisiana judgment, which Delisa opposed, and the chancellor ruled on October 23, 2009, that the judgment was lawful and binding, and that it should be registered and enforced. Delisa appealed.
In Miller v. Mills, decided May 3, 2011, the COA noted that the Mississippi courts are required by MCA § 93-27-203(l) to enforce another state’s child custody determination if the other state “exercised jurisdiction in substantial conformity with [the UCCJEA].” The COA held that the record did not support a finding that Louisiana was the children’s home state within the meaning of the UCCJEA at the time that Ryan commenced his Louisiana action, and that, as a result, Louisiana did not exercise jurisdiction in substantial conformity with the UCCJEA. The court held that registration of the Louisiana order in Mississipi was void. The trial court’s ruling was reversed and rendered.
Ryan had argued that, since the Louisiana court had obtained jurisdiction over Delisa through that state’s long-arm statute, he had the right to proceed. Judge Maxwell’s opinion brushed aside that argument and pointed out that UCCJEA jurisdiction is subject matter jurisdiction that may not be waived or conferred by consent.
This case stands for the proposition that the UCCJEA’s provisions are absolutely jurisdictional, and unless a jurisdictional basis exists pursuant to its provisions, jurisdiction may not be acquired by some other means.
I have seen many cases where the lawyers take a somewhat relaxed approach to the UCCJEA requirements. You do so at your own peril. The case you thought you had dealt with so deftly could come boomeranging back in quite unwelcome fashion.
WHO’S BLOGGING WHOM?
May 4, 2011 § 2 Comments
Over there on the right of the page is a list of links headed “LAWYER BLOGS.” These links will take you to blogs published by Mississippi lawyers on topics of interest to Mississippi practitioners. My intent is to provide links that you can check frequently for useful, entertaining information. Blogs that are not updated regularly are deleted until they resume regular posting.
Several of these blogs I read every day. Some I check occasionally to catch up. Some are aimed at laypeople, and are clearly marketing efforts. They might give you an idea or two about your own marketing.
All of these blogs are lawyers using the internet to inform, entertain, increase client base, or promote ideas about the law. I encourage you to check them out yourself and use them as a resource.
- Elder Law Blog. Ronald C. Morton of Clinton posts on matters of interest in the filed of elder law. For you lawyers who handle conservatorships, guardianships, trusts and wills, there is some material here that may just help you in a given case.
- Hattiesburg Divorce Lawyer. Tim Evans of Hattiesburg has a blog that targets clients and lay people who are seeking info about divorce and related issues. It’s a clever marketing tool, and you will find the information useful from an attorney’s standpoint.
- Mississippi Accident Lawyer Blog. Paul Snow of Jackson uses his blog primarily for marketing, but he also offers informative posts about personal injury litigation.
- Mississippi Criminal Defense Lawyer Blog. This is the blog of Curt Crowley of Jackson, who takes criminal defense issues and posts about them in terms that laypersons can understand.
- Mississippi Lawyer Blog. The Coxwell law firm of Jackson posts about legal matters for a general audience.
- MS Litigation Review & Commentary. A blog I read every day. Philip Thomas of Jackson focuses like a laser beam on Mississippi litigation, verdicts, appellate decisions, and issues affecting Mississippi practitioners. Highly recommended.
- Mullin’ Over. Winky Glover of Meridian’s blog on tax issues. Alas, not updated frequently enough.
- NMissCommentor. Another highly recommended blog that I read every day. Tom Freeland of Oxford posts on a wide variety of topics including Mississipi, regional and national legal issues, the blues, food and restaurants, books, politics, current events, etc., etc. He was a superior source of information on the Scruggs scandal, and continues to cover its developments.
- randywallace. A new blog by Randy Wallace of Clinton. He posts on a variety of topics, and it will be interesting to see how his blog develops.
- Thus Blogged Anderson. Ah, yes. The blog of the enigmatic, eccentric and quasi-anonymous “Anderson,” who styles himself as “Another proud member of the irony-based community.” His posts on almost every subject imaginable are notable for their sometimes caustic wit, insight and sharp intelligence. Another blog I read nearly every day.
Do yourself a favor and pick a handful of these links to add to your favorites or bookmarks list on your browser.
NEW REGISTRATION REQUIREMENTS FOR SEX OFFENDERS
May 3, 2011 § 1 Comment
Knowing whether a person is a sex offender is an important fact in custody and visitation determinations. The restrictions imposed by statute on sex offenders and their impact on child custody and visitation are subjects of another post to come. This post addresses the reporting requirements.
Effective July 1, 2011, MCA 45-33-21 is amended to greatly expand the reporting requirements in several important respects. Here are the highlights:
- The offenses included are expanded to embrace several new categories of offenses, including ” … condoning by the parent, legal guardian or caretaker of continuing sexual abuse of a child.”
- Non-residents who are employed or attending school in Mississippi must register.
- The list of jurisdictions in which the offender was convicted is expanded to include the District of Columbia and most, if not all, U.S. territories and possessions.
- The offender must register not only with the Department of Public Safety (DPS), but also with the sheriff of each county where the registrant resides, works, and attends school.
- Volunteer work, unpaid internships and transient and day-labor work must be reported.
- The duty to report changes in name and status is clarified, and the use of false information is added as an additional ground for a finding of non-compliance with the reporting requirement.
- Offenders are required to report all temporary residence locations, telephone numbers, passport and immigration information, and all professional licenses.
- Registrants must report within three days any change in vehicle information and internet identifiers.
There are more requirements. DPS is ordered to forward the registraion info to schools and public housing agencies in the affected areas, as well as law enforcement and other entities.
I suggest you read the law. It can be critical information in a child custody case. I have a post coming up soon on how the status of sex offender affects many important aspects of custody and visitation.
DISCOVERY AND THE UCCR
May 2, 2011 § Leave a comment
The MRCP sets out the rules that establish discovery in our courts.
Just as important as the MRCP are the Uniform Chancery Court Rules (UCCR), where some critical discovery provisions reside. UCCR 1.10 provides:
A. All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.
B. When responding to discovery requests, interrogatories, requests for production, and requests for admission, the responding party shall, as part of the responses, set forth immediately preceding the response the question or request to which such response is given. Responses shall not be deemed to have been served without compliance to this subdivision.
C. No motion to compel shall be heard unless the moving party shall incorporate in the motion a certificate that movant has conferred in good faith with the opposing attorney in an effort to resolve the dispute and has been unable to do so. Motions to compel shall quote verbatim each contested request, the specific objection to the request, the grounds for the objection and the reasons supporting the motion.
I have enforced that 90-day deadline whenever asked to do it. It’s there, and it’s enforceable. It’s also there to expedite litigation, which is almost always a good thing for the litigants.
As for the 60-day requirement for disclosure of experts, I posted about it here.
I’ve noticed some younger lawyers in our district not complying with 1.10(B). To save yourself some trouble, get counsel opposite to email the discovery requests to you so that you don’t have to retype them.
Week before last I had a motion to compel presented that did not repeat the discovery request or response. Let me assure you that it is always counterproductive to put the judge to unnecessary inconvenience and trouble, particularly when you have not complied with the clear requirement of the rules.
WRATHFUL WINDS, JUDGES, DOUBLE DECKER AND RUM PUNCH
May 1, 2011 § 2 Comments
The death and devastation that fell on our state and neighboring Alabama last Wednesday is sobering and sad. Four killed in our own Clarke County. Another three in Kemper to the north. A woman who works with Lisa lost four members of her family in the storms, including her husband and mother. And Smithville. The images take your breath away. A friend from Tupelo carried a truckload of supplies down there early Thursday morning before Homeland Security cordoned it off, and he said that the photographs are inadequate to capture the scope and severity of the damage. He saw bodies scattered in the wreckage and the survivors wandering in shock.
The reports of people responding with help bring a lump to your throat. Families in the surrounding communities are taking the homeless families in until they can make other arrangements. A man in Columbus who caters barbecues hitched up his cookers, rounded up some friends and lots of food, and set up in Smithville to cook free for anyone there who needed it. Yesterday on the Square in Oxford in the midst of Double Decker people were taking up money for the people in the devastated areas. There were thousands of people there, so I hope they reaped a bountiful harvest.
While so much of Mississippi was being walloped last week by the deadly tornadoes, the judges were in Jackson for the spring conference. Most of us spent a lot of time on cell phones checking on things back home. Chancellor Jim Davidson of Columbus learned that his home in Oxford had five trees on it and roof and water damage. All of our families made it through okay, though.
As always, I picked up a lot of helpful information at the judges’ meeting, and I will be passing much of it on to you here.
On Friday, Lisa and I met up at Oxford for the Double Decker Festival, which is without a doubt one of the best street festivals in the state. At DD Sarurday morning we ran into folks from Meridian and old friends the Gambrells of Oxford and the Tutors of Pontotoc. Robert Gambrell, a bankruptcy lawyer, told me the roof was ripped off his office in the storm that hit Oxford, and many files and some equipment were damaged.
The weather for DD was a gorgeous counterpoint to the turmoil of the days before. It was clear, sunny and cool, and a gentle breeze kept things comfortable. After wandering the more than 100 vendor booths admiring paintings, pottery, handicrafts, jewelry and whatnots, and enjoying the music and aroma of delicious food wafting across the area, we ambled over to Tom Freeland’s office to meet and visit with him. He treated me to a delicious rum punch made with fresh-squeezed limes and a generous dose of rum. Now that’s hospitality. I think next year I may bring a couple of lawn chairs and trespass on the front lawn of Tom’s office just off the Square on West Jackson so we can make a longer day of it. Lisa’s back does not enjoy the few hours of walking and standing that DD entails.
From there we had lunch at Two Stick (owned by friends of my daughter) and headed back to our Oxford retreat tired but happy.
Next week we’re going to give some money to that nurse who lost four family members. I encourage all of you to give whatever you can to the Red Cross or your church, or whomever you know will put it to good use to help the Mississippians who are hurting right now. No gift is too small for that purpose. And let’s remember them in our prayers.
