DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS

October 27, 2010 § 1 Comment

Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator.  The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney.  After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis.  The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.

 Frank retained another attorney and appealed the Chancellor’s decision.

The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010. 

There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.

There is no question that Frank Lewis was present at the hearing with his retained attorney.  Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court.  In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver.  The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court.  The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.

The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with.  If there are two relatives within the third degree, you must join them.  If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.

MEDICAL PRIVILEGE IN CUSTODY-RELATED ACTIONS

October 26, 2010 § Leave a comment

Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.

Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody.  The rule states:

There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights.  Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action.  The court may order the records sealed.

The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings.  The comment to the rule sets out “some factors the court should consider:

  1. Whether the treatment was recent enough to be relevant;
  2. Whether substantive independent evidence of serious impairment exists;
  3. Whether sufficient evidence is available elsewhere;
  4. Whether court-ordered evaluations are an inadequate substitute; and
  5. Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider.  In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any.  The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.

In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.

JUDGE DALE RETIRES

October 26, 2010 § Leave a comment

There will be a retirement reception honoring Chancellor Sebe Dale, Jr., 10th Chancery Court District, on Friday, November 12 at the Marion County Chancery Court Annex, 250 Broad Street in Columbia, from 2:00 p.m. to 6:00 p.m.  All members of the bar are invited and encouraged to attend.

Dale’s district includes Forrest, Lamar, Marion, Pearl River and Perry Counties.  He has served as Chancellor for more than 30 years.

He obtained an undergraduate degree from Mississippi College and his law degree from the University of Mississippi.  He also completed courses at the National Judicial College in Reno, Nevada.

Dale served as chairman of the Board of Governors of the Mississippi Judicial College, chairman of the Mississippi Judicial Advisory Study Committee, chairman of the Mississippi Children’s Code Commission, and other professional leadership positions.

For his leadership he was honored with the Justice Achievement Award of the Mississippi Court Administrators Association in 1995; the Mississippi Supreme Court Chief Justice Award in 1996; the Lifetime Achievement Award of the Mississippi Bar Association in 1997; and he was named Distinguished Jurist by the Mississippi State University Pre-Law Society in 2000.

He is a veteran of World War II, and retired Colonel of the U.S. Army Reserve.  He is a past president of the Magnolia Chapter of the Retired Officerss Association.

THOUGHT FOR THE DAY

October 22, 2010 § Leave a comment

THE POST TO RESTORE SANITY

October 22, 2010 § Leave a comment

Okay, I sort of stole the title of this post from Jon Sewart’s RALLY TO RESTORE SANITY (now the RALLY TO RESTORE SANITY and/or FEAR, since Stephen Colbert added his March to Keep Fear Alive to Stewart’s effort).  Whether you like Stewart or hate him, the idea of restoring sanity to our national debate is a concept all rational people should embrace.  It’s one I certainly wish for, especially on the eve of the congressional elections as the tone sharpens from strident to shrill. 

I ran across the following article in the AARP Bulletin the other day, and it puts into words my thoughts on the state of our political discourse in this country today much better than I could, so I am posting it here. 

CIVILITY IN A FRACTURED SOCIETY

Today’s rancorous politics is dividing America by: Jim Leach| from: AARP Bulletin | October 1, 2010

Politics has high and low moments. Sometimes it brings out the better angels of our nature; sometimes baser instincts. This season of shouting and name-calling is one of our lower moments, but it is not the worst period in American history. In 1804, Vice President Aaron Burr shot and killed Alexander Hamilton, our greatest secretary of the Treasury, in a legal act of incivility — a duel. Five decades later, Congressman Preston Brooks caned Sen. Charles Sumner unconscious on the Senate floor in an argument over slavery.

The Burr-Hamilton duel followed the most inspiring nation-building debate in world history. The Brooks-Sumner caning preceded the most uplifting presidency in our country’s existence. Higher moments have been characterized by expansions of political tolerance; lower moments by debilitating political discourse, often accentuated by the casting of religious slurs. Thomas Jefferson, for instance, was described as anti-Christian by partisan critics. At the zenith of anti-Catholic sentiment in the 19th century, rumors were circulated that Abraham Lincoln was Catholic. In the 20th century, in an era of rampant anti-Semitism, it was suggested that Franklin Roosevelt was a Jew.

Today, President Obama, like George W. Bush, has been referred to as a fascist. And in a period of rising Islamophobia, our president is even described as a secret Muslim.

What is wrong with false accusations and preposterous hyperbole? Plenty. Some frameworks of thought describe rival ideas; other frameworks define enemies or, worse yet, infidels.

Today’s rancorous politics is becoming radicalized in manipulative ways that divide Americans. That is why, in this election season, fidelity to civility may be as important as any stand a candidate may take.

Civility is not simply about manners. It doesn’t mean that spirited advocacy is to be avoided. What it does require is a willingness to consider respectfully the views of others, with an understanding that we are all connected and rely on one another.

Seldom is there only one proper path determinable by one individual or political party. Public decision-making does not lend itself to certitude. Everybody can learn from somebody else. That is why civility is a central ingredient of a democratic society.

Citizens should be expected to disagree vigorously with each other and take their disagreements to the ballot box. But the outcome that matters most after divisive campaigns is whether the prevailing candidates have the commitment to work together for the common good. A government of, by and for the people is obligated to conduct the nation’s business in a manner that respects dissent.

We cannot lead the world unless we morally rearm, not with intolerance for others, but with faith in traditional American ideals — honor, dignity, love of or at least respect for neighbors, near and far. As Lincoln noted in words borrowed from Scripture, a house divided cannot stand.

Jim Leach, chairman of the National Endowment for the Humanities, was a Republican member of Congress for 30 years.

POINTING THE WAY

October 21, 2010 § Leave a comment

Every litigant comes to court with problems to solve.  The ones who come away satisfied are not the ones who do the best job painting a picture of the atrocities they have suffered.  The ones who come away satisfied are usually the ones who do a good job painting a picture of the solution.

Imagine a situation at a temporary hearing where dad has left the family and has refused to send any support, but he is demanding custody because mom has a boyfriend who is spending a lot of time around the former marital residence.     

Dad’s side spends its time talking about how sorry mom is for her behavior, and how her bad behavior should not be rewarded with custody. 

Mom offers testimony about: her plan to get the children to school each day; her family in town who will help support her with caring for the children;  how mom’s work schedule will mesh with the children’s schedules; junior’s medication, and her role in administering it, and how aunt Donna will help get him to his doctor’s appointments; her plan to get little Amy to her gymnastics class every Tuesday; and what measures she will take to keep the boyfriend discreetly out of the picture on a temporary basis.  

Put yourself in the judge’s shoes.  He’s confronted with a problem, and one side has served up a platter of solutions, while the other has served up a platter of problems.  The whole reason you’re there is to get the judge to resolve the problems.  One side offers solutions, the other just talks about the problems.  Which side do you think has the better chance to prevail?

The same principle applies in most cases.  If you want the judge to fix visitation, offer a detailed plan (preferably in writing) that tells exactly what you want.  If you want 60% of the marital estate in equitable distribution, why not offer a spreadsheet that spells out precisely what your client would like to have.  If your client wants alimony, why not offer your version of a scoresheet sorting the proof among the Armstrong factors for the judge to consider?         

You will always be at an advantage if you will look at your case from the standpoint of what the judge is called upon to do.  If you will point a clear, logical, reasonable path for the judge that addresses and resolves the problems, you have an excellent chance of prevailing.

CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?

October 20, 2010 § 2 Comments

It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor.  Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986). 

The rule is not ironclad, however.  The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:

… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.”  [Emphasis added]

Caveat:  The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.

ALSO:  § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.

CONTESTING PROBATED CLAIMS IN AN ESTATE

October 19, 2010 § 4 Comments

Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate.  The statute requires notice to the claimant and a hearing.

This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time.  Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.

At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate). 

The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.

Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.

ADAR UPDATE

October 18, 2010 § Leave a comment

The Adar decision issued by a three-judge panel of the Fifth Circuit was the subject of a post I made October 1, 2010.  You can read my post here.  The ruling, issued in February and amended in March, was that a same-gender adoption judgment in New York was entitled to full faith and credit in Louisiana. 

On the very day I made my post, the Fifth Circuit en banc vacated the three-judge panel ruling on a petition for re-hearing:

 On October 1, 2010, the Court announced that a majority of the Circuit Judges in regular active service voted in favor of granting En Banc rehearing. By operation of Fifth Circuit Rule 41.3, that decision automatically vacated the Panel decision of February 18, 2010.

That leaves us for now where the case started, which is with a pending appeal to the Fifth Circuit, which now will take the matter up in the full panel.

Stay tuned.

Thanks to attorney Bill Jacob for bringing this to my attention.

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