FALLOUT OF FATE

March 11, 2011 § Leave a comment

What do all of these folks have in common?

As the Mayflower crossed the Atlantic in 1620, passenger John Howland was swept overboard during a storm. He managed to sieze a trailing halyard and was pulled back to safety. His descendants in the New World have included:

  • Franklin Roosevelt
  • George H.W. Bush and George W. Bush
  • Ralph Waldo Emerson
  • Henry Wadsworth Longfellow
  • Joseph Smith and Brigham Young
  • Humphrey Bogart
  • Richard M. Nixon*
  • Benjamin Spock
  • Sarah Palin
  • Chevy Chase
  • Christopher Lloyd
  • Alec Baldwin

If Howland had lost his life in that storm, none of these people would have existed.

All but Nixon* from Futility Closet; Nixon from another site.

SHOW ME THE MONEY!

March 10, 2011 § 2 Comments

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided.  You already have it in part with the joint property list that is included in the pre-trial order.  Why not just rearrange all those assets into the manner that your client wants them divided.   Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words.  Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have.  With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.

Or, if your client wants the  financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.

Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.

Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.

Here’s how you get them in:

You:  Let me show you a document and ask you what it is.

Witness:  It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].

You:  Does this table accurately reflect the [marital assets/financial assets] that are already in evidence?  Or: Is this the schedule you wish the judge to adopt? 

Witness:  Yes.

You:  Now, let me ask you a few questions about this … 

When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge.  The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.

In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.

GETTING THAT SUMMARY INTO EVIDENCE

March 9, 2011 § Leave a comment

I’ve talked here before about the beauty of MRE 1006, which allows you to summarize voluminous records and admit the summary into evidence.  The charm of the rule is that (1) it eliminates the need for tedious searching through documents to locate the nuggets you need and eliminates as well the tedious testimony it takes to do that, and (2) it makes the judge’s job easier, which makes the judge happier, and a happier judge is better for your case than a grumpy one.

So you’ve gone and condensed those ten years of credit card statements into a summary showing the expenditures for jewelry for the opposing party’s girlfriend, their trips to Gulf Shores, the vacation spending on the family, and the payments on the credit card showing that he never ran a balance until the separation, when the balance began to balloon.  All great stuff, and it’s going to help your alimony claim big time.

You proudly offer the summary and your wily opponent objects.  Sustained.  Every attempt you make to get the summary in meets with an objection.  Sustained.  You close your eyes and silently curse the judge who gave you the idea to go to all the trouble to do the summary in the first place.  Where did you go wrong?

Well, you have to lay a foundation first.

To get a Rule 1006 summary into evidence, you have to establish 5 things:

  1. That the original writings, recordings or photographs are, in fact, voluminous;
  2. That the originals can not be conveniently examined in court;
  3. That the originals, or duplicates, have been made available for examination or copying, or both, by the other party at a reasonable time and place;
  4. That the originals would be admissible in evidence; and
  5. That the chart, summary or calculation offered in lieu of the voluminous originals is fair and accurate.

Now, let’s rewind the above scenario and do it right (assuming you’ve already laid a foundation for entry of the credit card statements):

You:  Mrs. Smith, did you have an opportunity to examine all 120 of the MasterCard statements?

Witness:  Yes, I did.

You:  How many pages of statements were there?

Witness:  More than 600.

You:  After you examined them, what did you do?

Witness:  I extracted certain information, collated it into categories, and organized it into a summary.  I also highlighted the various charges on the original duplicates in colors corresponding with the categories.

You:  Does your summary fairly and accurately duplicate and summarize the information in the credit card statements?

Witness:  Yes.

You:  Your honor, I would ask that the record reflect that I did make the original credit card statements available to counsel opposite for examination and copying in discovery more than three months ago.

Counsel Opp:  That is correct, Judge.

You:  I offer the summary into evidence.

Counsel Opp:  Objection.  Best evidence rule, hearsay, self serving, redundant and cloud of witnesses.

Judge:  Overruled.  Let the document be marked as the next numbered exhibit and admitted into evidence.

That’s really all there is to it.  When the judge is poring over his notes and the exhibits to adjudicate the case, he will be extremely grateful that he has that nice summary to use instead of having to dig through 600 pages of credit card statements with thousands of transactions.  Not only that, he will be less likely to overlook something you considered critical.  The extra money your client has to spend for you to prepare the summary will be worth every dollar.

Wells v. State, 604 So.2d 271, 274-5 (Miss. 1992) is a case that illustrates the use and authentication of a summary in a jury trial.

MORE PROOF THAT CUTTING CORNERS DOES NOT PAY

March 8, 2011 § 1 Comment

Tangela Berry and Ricky Banks were guardians of their son Ryheim Banks.  In June, 2004, they filed suit in circuit court against several medical defendants alleging negligence.

They reached a settlement with one of the defendants, Laura Carpenter, for $25,000, to be apportioned 1/3 each to Berry, Banks and Ryheim, after deduction of a $10,000 attorney’s fee.

When the settlement was presented to the chancellor, the guardians’ attorney did not call any witnesses.  Instead, he made an announcement to the court that Carpenter’s involvement was “negligible,” and that the settlement was “appropriate.”  He did, apparently, question Berry and Banks about whether they understood they were releasing their claims against the defendant, which they did, and whether the were following the advice of their attorneys in settling Ryheim’s claim, which they also did.  There was no testimony regarding the nature or extent of the injuries, or the substance of the claims, or the damages incurred.  The chancellor signed a judgment approving the settlement on August 5, 2005, including the language that the settlement was a “fair and reasonable settlement of a doubtful claim and it is in the best interest of the minor and all others.”

In July 2008, the guardians again appeared in court with new counsel asking the chancellor to set aside the prior settlement because the former attorney had not prosecuted the claim and had done no discovery.  They said that they had learned that Carpenter had a $1,000,000 insurance policy that would have afforded coverage that was not disclosed to them at the time of the settlement.  Their motion was brought under MRCP 60(b).

The chancellor did set aside the 2005 judgment pursuant to MRCP 60(b), finding that there was insufficient evidence at the 2005 hearing to establish that the settlement was fair and reasonable and in the best interest of the minor.

Carpenter appealed, charging that the trial court erred:  in not including specific findings of fact and conclusions of law in his order; and that it was an abuse of discretion to set aside a judgment under MRCP 60 after three years had elapsed from the date of the judgment.

In the case of Carpenter v. Berry, et al., decided February 10, 2011, the Mississippi Supreme Court upheld the chancellor’s ruling.

As for the claim that the conclusions were unsupported, the appellate court found that the chancellor’s findings were sufficient, considering that the matter was not complex.

With respect to the abuse of discretion claim, the court noted that the chancellor did not specify that part of MRCP 60 under which he proceeded.  The court found MRCP 60(b)(5) applicable since that rule allows a judgment to be set aside where “it is no longer equitable that the judgment have prospective application.”

The court also found MRCP 60(b)(6) applicable, since it provides that the chancellor may grant relief “for any other reason justifying relief from the judgment.”  MRCP 60(b)(6) “is reserved for extraordinary circumstances,” and is “a grand reservoir of equitable power to do justice in a particular case.  Briney v. USF & G, 714 So.2d 962, 966 (Miss. 1998).

The Supreme Court noted that the trial judge must consider several factors in determining whether to grant 60(b)(6) relief:

  1. That final judgments should not lightly be disturbed;
  2. That a 60(b)(6) motion is not to be used as a substitute for an appeal;
  3. That the rule should be liberally construed so as to achieve substantial justice;
  4. Whether the motion was made within a reasonable time;
  5. Whether the movant had been afforded a fair opportunity to present claims or defenses, if the judgment was rendered after a trial on the merits;
  6. Whether there are any intervening equities that would make it inequitable to grant relief; and
  7. Any other factors relevant to the justice of the judgment under attack.

[Note:  one factor relating solely to dafault judgments was omitted by the court, with a reference]  M.A.S. v. Miss. Department of Human Services, 842 So.2d 527, 530 (Miss. 2003).

In this particular case, the Supreme Court found that this was no ordinary 60(b) case because it involved the rights of a minor under a guardianship.  The court said:

“It is the inescapable duty of [chancery] court and or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis.  The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers and even unnatrual parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court.  The court will not and can not permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the to prevent or correct.  Griffin, Chancery Practice, §§ 45, 360, 530, 533.  All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and to act contrary thereof at their peril.”

The court also noted that the procedures prescribed for settling a minor’s claims as set out in MCA § 93-13-59 and UCCR 6.10 had not been followed in the original proceeding before the court.

The timeliness claim was disposed of by finding that timeliness under 60(b)(6) depends on the facts of the case, and that the chancellor did not abuse his diecretion in this one.

Finally the Supreme Court at ¶ 22 held that “The chancellor properly exercised the discretion afforded by Rule 60(b)(6) by finding that the need to fairly protect the ward’s interests outweighed the need for finality.”

Moral of the story:  Don’t take shortcuts; faithfully follow the rules and the statutes.  It only takes a little more effort and time to do it right.  If a proper record had been made originally, that order might have been a lot more difficult to attack.  You can find an outline for how to handle a minor’s settlement here.

TAMING THE HYDRA

March 7, 2011 § 2 Comments

Tom Freeland’s NMissCommentor blog yesterday had a post entitled Judge Primeaux and the Hydra, which referenced my THE BEST DEFENSE IS A BOILERPLATE post immediately below. It prompted a flurry of comments about pleading affirmative defenses.  The comments are worth reading, but the graphic alone is worth following the link.

Looking at the comments on NMC, the humor fault line appears to run a jagged course with the circuit and federal practitioners on the “not funny” or “I don’t get it” side, and the lawyers with chancery experience on the other, humorous, side.  Those with chancery experience recognize that most of those defenses could never have any applicability in a divorce case, no matter what, and raising them is as ludicrous as a defendant raising recrimination or condonation as a defense to an automobile accident complaint, or unclean hands in a slip and fall case.  [A side question … if you did raise those classic chancery defenses in a circuit court case, reckon the lawyer on the other side would file for Rule 11 sanctions? My money says he/she would.]

I recognize that we in chancery inhabit a strange and alien world for those who seldom venture here.  We deal with matters where the shades of gray have their own shades of gray, and in the absence of juries that are always in danger of being infected by legal poisons, we usually take a somewhat more relaxed approach.  That ambiguity unsettles some, I know.  [I was at a rules committee meeting last week discussing some chancery matters with another member and I heard a lawyer next to me say to another, “I’m glad I don’t practice in chancery court.”]  In circuit court the rules are the rules. Period. In chancery, the rules are the rules until they run up against the best interest of a child or ward.  And without juries the rules of evidence can sometimes be like the speed limit in Italy — merely a suggestion.

As for the absurd divorce defenses, we chancery denizens here on the eastern edge of Mississippi civilization have had a good laugh about them over the past few months, and the perpetrators have good-naturedly endured the ribbing about them.  No pleadings were ever in danger of being dismissed. I never really put anyone to a hearing for those ridiculous pleadings.

Tame the hydra and she will be your friend.

THE BEST DEFENSE IS A BOILERPLATE

March 4, 2011 § 8 Comments

boil•er•plate. n 3.  Inconsequential, formulaic or stereotypical language.

Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:

The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Whew.  Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing.  After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed?  Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour?  We need to know these things.  Or, I guess we need to know them because they were pled.

Some of these defenses, foreign as they are to chancery court, do stir the imagination …

  • Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
  • Assumption of risk.  If you knew she was crazy when you married her, well …
  • Failure of consideration.  Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
  • Failure to mitigate damages.  My personal favorite.  Shifts the whole burden of blame, doesn’t it?
  • Laches.  So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
  • Lack of capacity to commit the offense.  This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
  • Pre-existing injuries or damages.  Another one with some wondrous possibilities.  “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
  • Release.  As in “Please release me; let me go, I don’t love you any more?”  Nah.
  • Res Judicata.  Don’t laugh.  There are possibilities here for folks who have remarried each other after a prior divorce judgment.
  • Statute of frauds.  Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
  • Statute of limitations.  The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
  • Waiver.  “But she told me it was okay for me to go out with Doris.”

Maybe you can come up with some imaginative offensive or defensive theories of your own.  If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.

“QUOTE UNQUOTE”

March 4, 2011 § Leave a comment

“Those who dance were thought to be quite insane by those who could not hear the music.”  —  Angela Monet

“Dancing madly backwards

Dancing on a sea

Racing on my memories

I’m glad I set my dreams

Tip toe, tip toe quickly

Forget about your cares

And remember underneath you

Is just a sea of air” — Captain Beyond

“Perhaps sound is only an insanity of silence, a mad gibber of empty space grown fearful of listening to itself and hearing nothing.” — Steven Millhauser

NEW PECKING ORDER AT THE COA

March 3, 2011 § Leave a comment

Chief Justice Waller has appointed Judge L. Joseph Lee as Chief Judge of the COA.

New Presiding Judges are Judge Tyree Irving and Judge Kenny Griffis.

LAYING THE FOUNDATION FOR A BUSINESS RECORD

March 3, 2011 § 1 Comment

Business records play a role in many chancery court matters.  Getting them into evidence can sometimes be crucial to your case.

MRE 803(6) allows introduction of business records, and states that they are “not excluded by the hearsay rule, even though the declarant is available as a witness.”  Before you can get the records into evidence, however, you must lay a foundation that the records come within the rule.  The four elements of foundation are:

  1. The record was made and kept in the course of regularly conducted business activity;
  2. The record is one that is routinely made and kept in the course of business, in the business’s usual practice;
  3. The record was made at or near the time of the event that it records; and
  4. The record was made by a person with knowledge, or from information transmitted by a person with knowledge, and who reported such knowledge in the regular course of business.

The witness who establishes the four elements will be either the record custodian or “other qualified witness,” who may be any person who can testify that the records satisfy the four elements.  The witness need not have personal knowledge of the contents, nor is it required that the witness was custodian at the time the record was made.  All that is required is that the witness have knowledge of the procedures under which the records were made and maintained.  In H & E Equipment v. Floyd, 959 So.2d 578, 581 (Miss. App. 2007), the trial court properly excluded the invoices upon which the plaintiff sought to sue on open account because the custodian failed to explain how the invoices, many of which were reprints, were created, or that the invoices relied on were created at the time the charges were incurred. 

Under the rule, the focus is on when the documents were created, their trustworthiness, and whether they were created in the course of regularly conducted business.  Ferguson v. Snell, 905 So.2d 516, 519-520 (Miss. 2004).  In Bower v. Bower, 758 So.2d 405, 414-415 (Miss. 2000), husband offered the monthly internet bills to prove wife’s internet usage, and the husband’s testimony was the only authenticating testimony offered.  The supreme court held that the trial court properly excluded them as not being proven to be business records; if you click through the criteria above, you can see that husband’s testimony did not meet them.

The fact that the records are maintained on a computer or in a data file does not require any additional foundation requirements. 

The person who generated the information in the record must have had personal knowledge, but the person who entered or recorded the information need not have personal knowledge.  For example, an employee of the business observes a chemical process and records the temperatures, reactions and times involved in hand-written notes, which she then tenders to a stenographer who turns the notes into a typed record that is maintained by a custodian.  The employee who observed must have had first-hand knowledge when the notes were made and if called as a witness, but neither the stenographer nor the custodian are under the same requirement simply to authenticate the documents as business records.  In Dillon v. Greenbriar Digging Service, 919 So.2d 172, 174 (Miss. App. 2005), it was held that the trial court properly let in an inspection report, even though the inspector/custodian who testified was not the inspector who performed the documented inspection, because he adequately authenticated it as a business record.    

If the record includes a statement by a person who is not a part of the business and is under no duty to make the report, and the statement is offered to prove the truth of the matter asserted, it will be treated as hearsay that is inadmissible, unless it can be shown to come within an exception to the hearsay rule.  An example:  The business’s employee reports the contents of a conversation he had with a customer.  If the statement is offered to prove the truth of the matter asserted by the customer, it is hearsay and will not be allowed in unless it comes within an exception, such as the customer’s own statement offered against him.  In Bingham v. State, 723 So.2d 1189, 1190 (Miss. App. 1998), the court of appeals held that a police officer’s report may be admitted only to prove matters observed by the officer, but not to prove inadmissible matter such as the hearsay statements of persons interviewed by the officer.  Copeland v. City of Jackson, 548 So.2d 970, 975 (Miss. 1989).  But see, Watson v. State, 521 So.2d 1290, 1294 (Miss. 1990), where the supreme court upheld admission of letters of complaint from customers maintained by a bank on the basis that the documents were made a part of the ban business records. 

It sometimes happens that records generated by third parties become part of a business’s records.  An expert’s report and recommendations, for instance, may be included in the records of a project.  The expert’s testimony would not be required for introduction of the report if:  (1) the custodian can establish that the expert’s report was incorporated into records kept in the normal course of business; (2) that the business keeping the record relies on its accuracy in the conduct of its business; and (3) “other circumstances” indicate the trustworthiness of the document.  Documents that are prepared for litigation or “litigation inspired” are generally found to lack trustworthiness.  Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987); See, e.g., Gilbert v. Ireland, 758 So.2d 1050, 1053-1054 (Miss. App. 2000) 

When the source of the information is an outsider who is not a member of the business organization, the statement may be admissible if there is proof that there is a regular practice of verification by an employee so that the outsider’s statements are adopted by the business and become its own statements.  An example of an admissible outsider record would be an invoice submitted by an outside company that is verified by an employee, matched to a purchase order of the business, and attached to records in the business’s files.  An example of an inadmissible outsider statement would be a letter from someone not connected with the business that is merely placed in the files of the business.  

Objections that the records include ambiguous or inaccurate statements or that they are incomplete go to the probative weight and not to admissibility.

Proof of matters based on absence of entries in business records and admissibility of public records are subjects of other posts.

MRE 902 addresses self-authentication, which may apply to some business records.

OVERNIGHT GIRLFRIENDS: NOW WELCOME?

March 2, 2011 § 3 Comments

And boyfriends, too, for that matter.

It has long been a widespread practice in chancery court to enjoin the parties from having a girlfriend or boyfriend spend the night when the minor children are present.  This language is lifted from a recent judgment in this district:

“The parties are each enjoined from having a person of the opposite sex, to whom the party is not related by blood or marriage, present at any time between the hours of 9:00 p.m. and 9:00 a.m. when the minor children are present.”

The expected beneficial effect being that the children are not exposed to an inappropriate relationship and modelling of improper behavior.  Seems like a worthwhile goal.

I have heard it questioned from time to time whether the court has authority to enter such an injunction in the face of some case law that discourages restrictions on visitation. 

The matter may have been resolved in Howell v. Turnage, decided March 1, 2011.  In that case, the chancellor had applied the familiar injunction, and the COA reversed his decision.  Here’s what the COA said:

“At the close of the modification hearing, the chancellor voiced concern regarding Hannah’s visiting Mitchel’s home when his girlfriend was also spending the night. Consequently, the chancellor restricted Mitchel’s visitation with his teenaged daughter, Hannah. Specifically, the chancellor prohibited overnight visitation with Hannah “in any dwelling where a member of the opposite sex, to whom [Mitchel] is not related is also spending [the] night.”

¶16. The chancellor has broad discretion in determining visitation and imposing restrictions upon it. Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992). However, absent a finding of ‘actual danger or other substantial detriment to the children,’ a chancellor may not restrict a non-custodial parent’s visitation. Id. There was absolutely no evidence in the record that overnight visits in the presence of Mitchel’s girlfriend adversely affected Hannah. Therefore,the chancellor abused his discretion in placing a restriction on Mitchel’s visitation.”

Dunn, you may recall, is the case where the chancellor had entered a broad injunction against the husband ever having the minor children in the presence of the woman with whom he admitted having an adulterous affair.  The injunction lumped together innocuous conduct such as attending church or a concert, dining out at MacDonald’s, or grocery shopping, with questionable and even outrageous conduct such as kissing, sleeping in the same bedroom, engaging in sex, and walking around the house in negligees.  No rational person can question that there is a considerable distinction between the two kinds of conduct.    

The Howell v. Turnage case was not remanded for the chancellor to hear whether there might be any such proof. It was rendered outright on the point.  So the message we are to draw, apparently, is that the door is closed on such injunctions unless there is proof that the girl/boyfriend’s presence adversely affects the child.

Strictly my own opinion:  This kind of living arrangement is probably standard operating procedure in the “sophisticated” big cities like Jackson, but I don’t think this will go over too well with the more respectable folks in New Hebron and Monticello, or in Quitman, Meridian, Zero or Shubuta, for that matter.  Folks in these more “backwards” areas think that exposure of children, especially impressionable children in their early teenage years, to that kind of situation is per se harmful to them.  And I guess I am old fashioned enough to see their point.  I wonder why the COA could not have simply said that such a restriction, minor as it is, is reasonable. 

Ironically, if the chancellor is weighing the best interest of the child under the Albright factors, she can consider behavior such as allowing an overnight guest of the opposite sex in the presence of the children as a negative under parenting skills or moral fitness, but when it comes to proscribing such conduct, now we are going to tie the chancellor’s hands?  Maybe it’s just me, but that doesn’t make much sense.  And it certainly doesn’t seem to put the best interest of the child first. 

From a practice standpoint, if you’re pursuing that injunction, don’t just assume some harm to the children.  Put on some proof about how it is harmful from a behavioral, moral and any other standpoint.  At least that way there will be proof in the record to support a finding, and the appellate court will have to decide whether behavioral or moral harm to a child is something that the public policy of Mississippi wants to guard against or not. 

There is nothing in the holding of this case that says that agreed injunctions can’t be enforced.  Negotiating such a provision now, however, will likely be more difficult.

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