“Quote Unquote”

June 5, 2020 § Leave a comment

“Always do right. This will gratify some people, and astonish the rest.”  —  Mark Twain

“Sometimes I worry about being a success in a mediocre world.”  —  Lily Tomlin

“The best politics is right action.”  —  Mahatma Gandhi

The Intent of the Testator and Extrinsic Proof

June 3, 2020 § 2 Comments

It is black-letter law in Mississippi that a court called upon to interpret a will is bound by the intent of the testator, and the court is limited to the four corners of the will itself.

But what is the court to do when the will contains a provision such as this:

I have five adult children … to whom I leave in equal shares, property I possess, whether real, personal or mixed (less any debt owing to me by any heir at the time of my death, to come out of that child’s part).

The will included no itemization of any debt, but there had been loans by the decedent to several of the children. How is the estate to prove it except by extrinsic evidence?

That was the conundrum presented to the trial court in a dispute between Sandra Brown and Tracy Walker and the Estate of their mother, Sarah Walker.

The estate filed a complaint for declaratory judgment, and at trial sought to prove the debts by a notarized statement that Sarah Walker had prepared in 2007. It spelled out each child’s debt; Sandra’s was $85,644, and Tracy’s was zero. The chancellor denied the estate’s request to consider evidence outside the will, citing the four-corners principle, and the estate appealed.

In Estate of Walker v. Brown and Walker, decided May 19, 2020, the COA unanimously reversed and remanded. Judge Lawrence wrote the opinion:

¶18. Scott argues that the court erred in denying his request to use extrinsic documentation to determine each child’s debt. In the opinion and judgment, the court stated the following:

The Court declines to find that such document should be considered a part of, or read together with, the Last Will and Testament.

. . . .

Sandra accurately advises the Court that parol evidence cannot be utilized to interpret the testator’s will unless the terms of the will are ambiguous. The Court specifically finds that the will is not ambiguous, and should be construed and interpreted solely by the terms of and on the four corners of the will itself. The written statement of debts ostensibly owed the decedent is merely an allegation by the decedent of debts owed at a particular point in time, which point was almost nine years prior to her death.

The court found that the will was not ambiguous and any evidence concerning potential debts owed to the decedent many years prior to her death was “merely an allegation” of potential debts owed. The court refused to consider the debts owed because they were not listed “within the four corners of the will.” Finally, the court ruled that Scott was not allowed to deduct any debt that was not “contained within the will itself.”

¶19. “Our polestar consideration, as always, is the intent of the testator, the right our law has given each competent adult to direct from the grave the disposition of [her] worldly goods.” Tinnin v. First United Bank of Miss., 502 So. 2d 659, 667 (Miss. 1987). It is well established that “a will speaks at the death of the testator.” Johnson v. Bd. of Trs. Miss. Annual Conference Methodist Church, 492 So. 2d 269, 276 (Miss. 1986); see also Robert A. Weems, Mississippi Practice Series: Wills & Admin. of Estates in Mississippi § 9-4, at 296 (3d ed. 2003). Further, a testator’s will should be enforced so as to avoid clearly unintended consequences. Johnson, 492 So. 2d at 276.

¶20. It is true that “[i]n determining the testator’s intent, in the absence of ambiguity, this Court is limited to the ‘four corners’ of the will itself.” Estate of Blount v. Papps, 611 So. 2d 862, 866 (Miss. 1992). The plain language of the will shows it was clearly Sarah’s intention to have each child’s debt deducted from his or her share. That intent was further evidenced by witness testimony. Sanford testified that Sarah added the debt provision in a revised draft to the original will and her clear intent was for each child to receive as equal share minus any debts owed to Sarah. Scott testified that he and Sarah had conversations about that provision and that he encouraged her to keep track of each child’s debt. Thereafter, Sarah created the July 16, 2007, statement, which neither party disputes she drafted.

¶21. Brown did not testify at the hearings but complains through pleadings that the debts should not be considered since those debts are not within the four corners of the will. That argument is misplaced. Under such a provision, if the testator were required to offset each child’s equal estate with those debts only listed in the will, every loan to a child would necessitate a new will or at least another codicil. In this case, the testator’s intent was clear. The testator wanted each child to receive a total equal share of her property, whether that share was accumulated by loans during the life of the testator or by the will after the death of the testator. Because each child was to receive an equal share, if a child had borrowed money from the testator during her life, those loans would be deducted to ensure each child had an equal share at her death. That clear intent would be subverted if a child could borrow from the testator throughout life and then receive an equal share of what was left of the estate upon the death of the testator. To hold otherwise would allow one child to obtain unfair and unequal parts of the estate to the detriment of the other children’s shares by simply obtaining loans.

¶22. The evidence was not offered to modify the terms of the will. Rather, it was offered to give effect to the clear intent expressed in the will. Therefore, the court should have factually determined if the evidence was credible and sufficient to prove the existence of debts or not and then acted accordingly consistent with the clear and unambiguous terms of the will. After review, we find that the July 16, 2007, statement, the calendar entries, and other documents offered into evidence, as well the testimony of witnesses, were evidence which should have been considered by the chancery court in an effort to determine the potential debt each child may have owed to Sarah. Thus, the chancellor should have considered the credibility and the sufficiency of the evidence offered and made factual findings as to each child’s debt, if any, to Sarah and then give the effect each deserved under the clear language of the will.

So, the process is for the court first to determine the intent of the testator from the four corners of the instrument itself, and then to consider whatever admissible evidence there is that fleshes out the testator’s intent.

In this particular case, though, the debts were outside the statute of limitations. Did that mean that they were uncollectable?

¶23. Brown also argues that any debt she owed as stated in the July 16, 2007, document is more than three years old, and therefore any collection of that debt would be barred by the statute of limitations. See Miss. Code Ann. § 15-1-29 (Rev. 2012). Brown’s argument is misplaced. The estate is not trying to collect any amount from Brown. Rather, the estate is simply trying to deduct that debt from her share of the inheritance.

In conclusion,

¶24. We find that the chancery court should have considered the evidence outside of the will to fulfill Sarah’s clear intent to have each child’s debt deducted from his or her share of the estate upon her death. Accordingly, we reverse the chancery court’s ruling and judgment and remand this case to the chancery court to determine what amount, if any, should be deducted from each child’s share in order to give legal effect to the clear intent of the
testator.

 

 

A Divorce Misfire

June 2, 2020 § Leave a comment

When the chancellor finds that the plaintiff has failed to meet the burden of proof to establish a ground for divorce, I call that a “misfire.”

After Karrah Wangler rested her case in chief for divorce against her husband, Richard, he moved to dismiss pursuant to MRCP 41(b), and the chancellor granted the motion, dismissing the complaint. Dissatisfied with the misfire, Karrah appealed.

The MSSC retained the case and, in its March 12, 2020, decision in Wangler v. Wangler, the court affirmed. The outcome is not all that remarkable, but the majority opinion includes a helpful exposition on the ground of HCIT. Judge Griffis’s opinion:

¶13. At the conclusion of Karrah’s case-in-chief, Richard moved to dismiss her complaint. In granting Richard’s motion and dismissing Karrah’s complaint for divorce, the chancellor found as follows:

[H]aving reviewed the pleadings, I’ve looked through all 13 exhibits that were admitted into evidence by stipulation, looking at the notes that I took during testimony, the [c]ourt finds that [Karrah] has failed to present adequate proof of habitual cruel and inhuman treatment[,] and after reviewing the standard set by the case law in the State of Mississippi, the [c]ourt is of the opinion that [Karrah] is not entitled to a divorce on the grounds of [habitual] cruel and inhuman treatment. So the [c]ourt would grant the motion to dismiss by [Richard].

¶14. Mississippi Rule of Civil Procedure 41(b) states, in pertinent part,

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

¶15. “The standard of review applicable on motion to dismiss under Rule 41(b) is different [from] that applicable to a motion for a directed verdict.” Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 258 (Miss. 1997) (citing Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359 (Miss. 1992)).

In considering a motion to dismiss, the judge should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).”

Id. at 259 (emphasis omitted) (citations omitted). “[This Court] will overturn the chancellor’s decision on a Rule 41(b) motion to dismiss only if the findings are not supported by substantial evidence, or the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Pittman v. Pittman, 195 So. 3d 727, 732 (Miss. 2016) (citing Stewart, 700 So. 2d at 259). “Legal questions, however, are reviewed de novo.” Id. (internal quotation marks omitted) (quoting Sanford v. Sanford, 124 So. 3d 647, 652-53 (Miss. 2013)).

¶16. A divorce on the ground of habitual cruel and inhuman treatment requires the following to be shown by a preponderance of the evidence:

[C]onduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Osborne v. Osborne, 202 So. 3d 639, 641 (Miss. Ct. App. 2016) (citing Richard v. Richard, 711 So. 2d 884, 889 (Miss. 1998)). Additionally,

Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:

That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or

That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

Miss. Code Ann. § 93-5-1.

¶17. “The conduct must consist of something more than unkindness or rudeness or mere incompatibility or want of affection.” Osborne, 202 So. 3d at 641 (internal quotation marks omitted) (quoting Horn v. Horn, 909 So. 2d 1151, 1155 (Miss. Ct. App. 2005)). “The offending spouse’s conduct . . . ‘must be shown to have been systematic and continuous.’” Baggett v. Baggett, 246 So. 3d 887, 892 (Miss. Ct. App. 2017) (quoting Horn, 909 So. 2d at 1155). “Further, the offended spouse must show a causal connection between the offending spouse’s conduct and the impact on the offended spouse.” Id. (citing Smith v. Smith, 90 So. 3d 1259, 1263 (Miss. Ct. App. 2011)). “Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct.” Id. (internal quotation marks omitted) (quoting Smith, 90 So. 3d at 1263). [Fn omitted]

The court went on for eight more pages to analyze the proof and ultimately agreed with the chancellor that Karrah had failed to meet her burden of proof.

In my court, where the grounds for divorce are contested, I require that the lawyers bifurcate the case and try it solely on the grounds. If the divorce is not granted, that is the end of that. If the divorce is granted, then the case proceeds to equitable distribution, alimony, and any other contested issues. The idea is that it saves the parties the expense of preparing to try the financial issues that the court might never reach if the divorce is denied. It also saves a couple of extra days in court if there is no divorce.

The Flip Side of Restricting the GAL

June 1, 2020 § Leave a comment

Last week we visited the MSSC’s majority decision in Barber v. Barber, which held that it was error for the chancellor to exclude a GAL report from evidence and to limit the GAL’s testimony based on the GAL’s conclusion that allegations of abuse were unfounded.

Today we will look at Justice Ishee’s dissent, joined by Chief Justice Randolph and Justice Griffis. It’s somewhat lengthy by this blog’s standards, but it’s worth a read:

¶42. The statute requires the appointment of a guardian ad litem “when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151 . . . .” Miss. Code § 93-5-23 (Rev. 2018). As the majority acknowledges, more than a mere allegation is required to invoke the statute; the chancellor “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Maj. Op. ¶ 27 (internal quotation marks omitted) (quoting Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016)). “The statute should not be read ‘as requiring . . . the appointment of a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties.’” Carter, 204 So. 3d at 759 (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004)).

¶43. The majority sidesteps the question of whether there was a sufficient factual basis to trigger the statute. It appears instead to be satisfied with its supposition that “at the time of the appointment, the chancellor considered the requirements for a mandatory appointment to be met.” See Maj. Op. ¶ 34 n.6. From my own review of the record, I disagree; it appears that the chancellor appointed the guardian ad litem out of an abundance of caution, not because he had found that doing so was statutorily required. But regardless of the chancellor’s subjective intent, the appointment was not statutorily required because the allegation the children were abused was never substantiated. See Carter, 204 So. 3d at 759.

¶44. Sylvia leveled a cursory allegation of abuse after the chancellor awarded temporary custody to Mark—Sylvia alleged just that “Mark is guilty of conduct constituting abuse towards the minor children, inclusive of physical, verbal and emotional abuse.” The chancellor appointed a guardian ad litem to look into Sylvia’s allegation. The guardian ad litem was instructed to report back to the court whether appointment of a guardian ad litem was mandatory, but she was also to “report to this [c]ourt if there is even a shred of thought that there might be any danger to the child[ren].” The guardian ad litem reported back with no details about the allegations, just her conclusion that the allegations were “unsubstantiated at this time”—unsubstantiated is, again, a word this Court and the Court of Appeals have used to describe allegations that do not require the appointment of guardian ad litem. See Carter, 204 So. 3d at 759. Nonetheless, the guardian ad litem went on to recommend that the allegations “[rose] to the level that the [guardian ad litem] should be appointed as a permanent [guardian ad litem].” The chancellor then entered an order finding that the appointment of a guardian ad litem was “necessary and warranted.” The order instructed the guardian ad litem to “conduct an investigation” and to “make a recommendation,” but it did not say the appointment was mandatory under the statute. In fact, the chancellor’s order indefinitely appointing the guardian ad litem said nothing at all about the allegations of abuse.

¶45. Later, after the chancellor heard the details, he changed his mind about the need to hear the guardian ad litem’s report or recommendation. The chancellor found unequivocally that the appointment had been discretionary and that the allegation Mark had abused the children was not credible. He held,

[T]his Court is the ultimate arbiter of whether or not there is credible evidence of abuse or neglect that would trigger this Court appointing [a] guardian ad
litem.

And there is absolutely no doubt in this Court’s mind that after hearing the testimony, if this Court were to be asked to appoint a guardian ad litem based
upon the credible evidence, this Court would not appoint a guardian ad litem in this matter.

This matter is chock full of bad parenting, bad judgment, general knucklehead behavior and immaturity, which makes it consistent with about 90 percent of the cases that come to this Court.

As such, as the ultimate foundation upon which the guardian ad litem was appointed, and that is potential abuse, neglect of the minor child, in this Court’s view, not being credible or substantiated in any way, the Court would indeed grant the motion to exclude the guardian ad litem report, as well as this
Court would exclude the testimony of the guardian ad litem herein.

The chancellor reached this conclusion after hearing three days of testimony and conducting in camera interviews with the two oldest children.

¶46. In changing the guardian ad litem’s assignment to suit the needs of the case as it unfolded, the chancellor acted according to this Court’s prior direction—the chancellor’s order appointing a guardian ad litem “should not permanently bind the court should needs change as the litigation progresses.” S.G. v. D.C., 13 So. 3d 269, 281 (Miss. 2009). A chancellor has the authority to expand or limit the role of a guardian ad litem “as the needs of a particular case dictate . . . .” S.G., 13 So. 3d 281. “The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice” and her “role at trial may vary depending on the needs of the particular case.” Id. at 280-81. The majority notes these holdings but fails to give them effect. See Maj. Op. at ¶¶ 24-25.

¶47. I submit that reversible error cannot be found without a showing that the allegation of abuse was sufficiently substantiated and credible to make the appointment of a guardian ad litem mandatory under the statute. See Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759. No such showing has been made.

¶48. The Court of Appeals addressed a very similar scenario in the recent Kaiser v. Kaiser, 281 So. 3d 1136 (Miss. Ct. App. 2019). There, a chancellor appointed a guardian ad litem to investigate allegations the children had been endangered when the mother exposed them to her abusive boyfriend. Id. at 1140. The guardian ad litem was subsequently released without giving a final report or recommendation to the chancellor, after it became clear that the children had not been abused or neglected. Id. at 1141-42. The Court of Appeals found no error because the appointment had been discretionary:

Because allegations of abuse mandating the appointment of a GAL were not present in this case, the chancellor’s appointment of the GAL was discretionary and not statutorily mandated pursuant to section 93-5-23. When an appointment of a GAL is discretionary, the chancellor is not required to include his or her reasons for rejecting the GAL’s recommendation. Id. at 1142 (citing Porter, 23 So. 3d at 449).

¶49. Here, before trial, the allegation that the children were abused was bare and “unsubstantiated,” as the guardian ad litem found. It is not mandatory to appoint a guardian ad litem “based merely on an unsubstantiated assertion found in the pleadings of one of the parties.” Carter, 204 So. 3d at 759 (emphasis added) (internal quotation mark omitted) (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004). At trial, the most severe allegations leveled against Mark were that he had struck one of the boys on the top of the head with the handle of a kitchen knife (to get his attention) and had pushed his stepson (the oldest, about fourteen years of age) into a nest of yellow jackets. The appointment of a guardian ad litem is only mandatory when “the allegations of abuse and/or neglect rise to the level of a ‘charge of abuse and/or neglect’” under the Youth Court Law. Carter, 204 So. 3d at 759 (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). The chancellor had substantial evidence to support his ultimate finding that the credible allegations amounted to little more than “bad parenting, bad judgment, [and] general knucklehead behavior and immaturity.”

¶50. Applying Carter and Porter and Kaiser, I would find that the appointment of the guardian ad litem here was discretionary, not mandatory under the statute, and that no error resulted from the chancellor’s decision not to hear the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449; Kaiser, 281 So. 3d at 1142.

¶51. Finally, I would point out that this issue should be procedurally barred for two reasons. First, even though Sylvia admitted at trial that the allegation of abuse had to be sufficiently credible for the appointment of a guardian ad litem to have been mandatory, on appeal she entirely neglected to brief the question of whether her allegation of abuse was substantiated. See Carter, 204 So. 3d at 759. Like the majority, Sylvia just assumes the question was finally decided by the appointment of a guardian ad litem following allegations of abuse. I do not agree and would hold that reversible error cannot be found without a showing that the appointment really was required by the statute. See Porter, 23 So. 3d at 449. Since Sylvia failed to brief that question entirely, she has waived the issue on appeal. See Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (Miss. 2018) (“The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.” (internal quotation marks omitted) (quoting Jefferson v. State, 138 So. 3d 263, 265 (Miss. Ct. App. 2014))).

¶52. Sylvia also failed to proffer the guardian ad litem’s report or testimony. A party complaining of the exclusion of evidence is required to proffer that evidence. Gordon v. Wall (In re Estate of Waller), 273 So. 3d 717, 720 (Miss. 2019). This is so the trial court will have an opportunity to correct its mistake (if there was one) and so a reviewing court can judge whether the error was sufficiently important to require reversal. See id. Reversible error could only result here if the chancellor’s decision was contrary to the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449. Silvia elected not to make the guardian ad litem’s report and recommendation part of the record, so this Court can only speculate about whether its exclusion from evidence was reversible error.

¶53. The statute does not require the appointment of a guardian ad litem in response to a bare, unsubstantiated allegation of abuse. Carter, 204 So. 3d at 759. The appointment of a guardian ad litem here was therefore discretionary, so there was no error in the chancellor’s decision not to receive a report or recommendation from the guardian ad litem. Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759; Kaiser, 281 So. 3d at 1142. The issue is also procedurally barred because Sylvia failed to fully brief it and failed to proffer the guardian ad litem’s recommendation. I would affirm the chancery court’s judgment.

My thoughts:

  • I am persuaded by Justice Ishee’s reasoning. I think the chancellor intended this to be a discretionary appointment, and he changed the GAL’s role as the S.G. case had actually encouraged. Most significantly he did so only after three days of testimony and interviews with the children.
  • You can avoid a similar problem simply by asking your chancellor to include in the order appointing the GAL a finding whether it is discretionary or mandatory. Or, if you prepare the order, make sure you specify whether it is discretionary or mandatory.
  • This case highlights the importance of including more than mere allegations in your pleading if you are serious about charging abuse or neglect. You’ve got to give the judge facts that would be sufficient to support a case in Youth Court.
  • You should read ¶52 carefully, then copy it, print a few copies, and tape it to your computer screen, bathroom mirror, and your forehead; the concept is that important. If the judge excludes your evidence, you must make an offer of proof, aka proffer, or you may not bring it up on appeal. It’s enshrined in MRE 103(a). I’ve posted about this numerous times. When you try a case, you must be mindful that only part of your job is to persuade the chancellor; you also are making a record to win on appeal.

 

 

 

Windmills

May 29, 2020 § Leave a comment

At Kinderdijk, Netherlands.

Limitations on Restricting the GAL

May 27, 2020 § Leave a comment

In divorce litigation between Sylvia and Mark Barber, the chancellor appointed a GAL to investigate Sylvia’s allegations that Mark had abused their children. After the GAL found the claims to be unsubstantiated, the chancellor granted Mark’s motion to limit the testimony of the GAL and to exclude the report from evidence. After the case was concluded, Sylvia appealed on several grounds, among them that the chancellor erred in excluding the GAL report and limiting the GAL’s testimony.

In Barber v. Barber, decided January 30, 2020, the MSSC reversed. Justice Kitchens wrote for the 6-3 majority:

¶23. Sylvia Barber argues that our courts require a court-appointed guardian ad litem either to testify at trial subject to cross-examination or to submit a written report and, if requested, to make recommendations. Because Culpepper was not allowed to testify or submit her report, she contends that the chancellor’s decision was clear error. [Fn 4]

[Fn 4] According to Sylvia Barber, “[a]lthough the [guardian ad litem] fulfilled all obligations, she was not allowed to testify, her report was completely stricken; and the Court strangely refused to receive any of her recommendations.”

¶24. This Court has recognized that “[t]he role to be played by a guardian ad litem is complex and not subject to a simple, universal definition.” S.G. v. D.C., 13 So. 3d 269, 280 (Miss. 2009). The Court clarified function of the guardian ad litem in S.G.:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of
the court—to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Id. at 280-81.

¶25. Thus, chancellors may assign duties to a guardian ad litem upon appointment. This Court “encourage[s] chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings.” Id. at 281. This charge to

[s]et[] out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation[s] by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, [but] the role of the guardian ad litem should at all times be clear.

Id.

¶26. This Court has held that “the guardian ad litem should never serve as a substitute for the court. The court is not bound by the guardian ad litem’s recommendation . . . .” Id. at 282 (footnote omitted). To be sure, guardians ad litem serve important roles as “appointed . . . investigator[s] for, or advisor[s] to, the court,” and, as authorized, “the guardian ad litem, should recommend a course of action to the court . . . .” Id. at 282. This Court has emphasized that “the trial court, and not the guardian ad litem, is the ultimate finder of fact.” Id. at 283. Further, this Court will not impose a strict rule in circumstances in which chancellors are authorized to exercise their discretion “as the needs of a particular case dictate . . . .” Id. at 281; see also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000)(“Although this Court has required a guardian ad litem to perform tasks competently, there is no requirement that the chancellor defer to the findings of the guardian ad litem, as is proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).

¶27. When charges of child abuse or neglect arise, Mississippi Code Section 93-5-23 mandates the appointment of a guardian ad litem. The statute provides that a court “shall appoint a guardian ad litem if charges of child abuse or neglect are raised in a child custody action. Miss. Code Ann. § 93-5-23 (Rev. 2018) (emphasis added). [Fn 5] Under this statute, a judge is required to “investigate, hear and make a determination” regarding allegations of abuse. Id. And the court “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016) (citing Miss. Code Ann. § 93-5-23 (Rev. 2013)). Upon appointment, a guardian ad litem is obligated “to protect the interest[s] of the child[ren] for whom he has been appointed” and is authorized to “investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest.” Miss. Code Ann. § 43-21-121(3) (Supp. 2019). When appointed in accordance with Section 93-5-23, the guardian ad litem must be an attorney. Miss. Code Ann. § 93-5-23.

[Fn 5] The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.

Miss. Code Ann. § 93-5-23.

¶28. Sylvia Barber argues on appeal that the chancellor was bound by this Court’s decision in McDonald v. McDonald and that, in a mandatory appointment, the [guardian ad litem] must either submit a written report or testify and must make recommendations to the court if requested. McDonald v. McDonald, 39 So. 3d 868, 883 (Miss. 2010). Indeed, this Court has relied on McDonald to hold that “[w]hen a chancellor chooses to hear the abuse allegation during a custody hearing, appointment of a [guardian ad litem] is mandatory. As part of his or her duties, the [guardian ad litem] must either submit a written report or testify, and must make recommendations to the court if requested.” Smith v. Smith, 206 So. 3d 502, 510 (Miss. 2016) (footnote omitted) (citing McDonald, 39 So. 3d at 883). Because, as discussed below, we find that the appointment of the guardian ad litem in this case was mandatory, the guardian was required to submit a written report or testify, and, if requested, to make recommendations to the court.

¶29. Before further discussion, we emphasize the serious and vital nature of guardians ad litem in safeguarding the welfare of children whose lives are impacted irrevocably by the decisions of our judicial system. The literal translation of the term guardian ad litem is guardian for the suit. Ad litem, Black’s Law Dictionary (7th ed. 1999). Section 93-5-23 and this Court’s decisions applying it make clear that the legislature and the judiciary have recognized the specific need for an officer of the court with the dedicated role of protecting the interests of children who are the subject of child abuse or neglect allegations. The appointment of a guardian ad litem is not a mere perfunctory hoop through which the court must go to resolve a child custody case. Rather, the role of the guardian ad litem is a meaningful one; it has been enshrined in the law and public policy of this state for the very reason that the guardian ad litem is the only participant in a child custody proceeding whose sole interest is identifying and protecting the rights of the children and reporting its findings to the court. Therefore, a chancellor’s failure to consider a mandatorily appointed guardian ad litem’s findings is an error of the utmost seriousness.

The court reversed and remanded. Justice Ishee dissented, joined by Randolph and Griffis. We’ll look at that next week.

Standing to Contest a Conservatorship

May 26, 2020 § Leave a comment

May a person being sued by a conservatorship challenge the legality of the conservatorship and have it set aside?

That was an issue that arose in the course of litigation between the conservators of Mary Cook and John Ward, her erstwhile business partner. The conservators sued Ward to recover money he got from Cook, charging him with undue influence and claiming she was incompetent. During the trial, Ward moved the court to “set aside” the conservatorship because the record showed that Cook was not given 5-days’ notice of the conservatorship hearing as required by § 93-13-253 (now superseded by the GAP Act). The chancellor denied the motion, and Ward appealed.

In Ward v. Estate of Cook, et al., the COA affirmed. Judge Jack Wilson wrote for the unanimous court:

¶24. As noted above, the trial in this case was held on October 17, 2018, and November 9, 2018. On November 8, 2018, Ward filed a mid-trial motion to set aside the conservatorship, alleging that Cook did not receive five days’ notice of the hearing on the conservatorship petition as required by Mississippi Code Annotated section 93-13-253 (Rev. 2013). The chancellor denied the motion and ruled that Ward was a “stranger” to Cook’s conservatorship and lacked standing to challenge it. On appeal, Ward argues that the chancellor erred and that the conservatorship was void and should be set aside due to insufficient notice and for additional reasons.

¶25. A person has both standing and a right to petition for the removal of a conservator if that person “has a legitimate interest present or prospective in [the ward’s] estate, or . . . some personal responsibility as regards the estate or the care or welfare of the ward.” In re Conservatorship of Davis, 954 So. 2d 521, 524 (¶12) (Miss. Ct. App. 2007) (emphasis omitted) (quoting Conservatorship of Harris v. King, 480 So. 2d 1131, 1132 (Miss. 1985)). In addition, “the chancellor, as superior guardian, might take notice of petitions by strangers in such cases as a matter of information to him openly tendered,” but such a stranger has “no privilege of appeal” if the chancellor refuses to consider his petition. Id. (emphasis added) (quoting Harris, 480 So. 2d at 1132). In other words, it is “clear . . . under Mississippi law that the receipt of such petitions [from ‘strangers’] is within the chancellor’s discretion.” Id. (quoting Harris, 480 So. 2d at 1132).

¶26. In the chancery court, Ward argued that he had standing to challenge the conservatorship simply because he was being sued by the conservators. On appeal, he similarly argues that his claim to the Overstreet Drive property constitutes an “interest” in Cook’s estate. However, the chancellor correctly rejected Ward’s argument. The estate’s claim that Ward had wrongfully taken money and property from Cook did not give Ward a legitimate interest in Cook’s estate. Therefore, Ward was a mere “stranger” to the estate. Furthermore, the chancellor did not abuse her discretion by denying Ward’s eleventh-hour challenge to the conservatorship. This issue is without merit.

That’s kind of interesting that the court might take notice of a stranger’s petition as a matter of information, but the stranger has no privilege of appeal if the trial court refuses to act on it.

May 25, 2020 § Leave a comment

State Holiday

Courthouse closed

Reading

May 22, 2020 § Leave a comment

Half of a Yellow Sun by Chimamanda Ngozi Adichie. The title refers to the golden rising-sun emblem on the national flag of the short-lived (1967-1970) Republic of Biafra (Bee-afra) that seceded from Nigeria, prompting a bloody tribal civil war in which millions were slaughtered and starved to death, and this is a story of that era. We see the unfolding events through several characters, including a professor, twin sisters from a patrician family, a house servant, an Englishman, and their interactions with each other and various minor figures. Adichie is a skilled storyteller adept at developing character, and she has a keen eye for description that she deftly crafts into entertaining prose. Fiction.

A Visit from the Goon Squad by Jennifer Egan. Pulitzer-Prize-winning “novel” that is actually a set of 13 discrete stories through which many of the same characters weave in and out as time oscillates from story to story between the present, past, and even future. The style and voice vary from chapter to chapter, rewarding the reader with a kaleidoscope of expression and points of view. Not only is the structure of the novel unorthodox, but in one chapter Egan adroitly describes a family’s interrelationships through a teenager’s power-point presentation. The writing is bright and crisp, the characters vivid and sharply drawn. Highly recommended. Fiction.

Calypso by David Sedaris. Yet another collection of amusing essays. We have come to expect laugh-out-loud passages in Sedaris’s work, and there are some here. But his reflections in this book on aging, his father, and his siblings sound a more somber, reflective tone. Still, if you enjoy Sedaris, you will enjoy this collection. Fiction or non-fiction; you decide.

Never Enough by Judith Grisel. A PhD neuroscientist and former addict explains addiction from a scientific and experiential point of view. If you’re like me, you will skim the chemistry and get right to the explanations of how addiction occurs, how different substances have different effects, and what is and is not effective treatment. Non-fiction.

A Different Drummer by William Melvin Kelly. A lost treasure, first published in 1962, but largely overlooked and overshadowed as civil-rights confrontations were beginning to grab headlines and attention. Rediscovered and republished in 2018, it is the story of a fictional southern state located between Mississippi and Alabama, and the exodus of its black inhabitants. Kelley, who was black (he died in 2017), tells the story from the viewpoint of the white people who become enraged over the development, with predictable results for that era. Fiction.

The Winter Soldier by Daniel Mason. An Austrian medical student joins the army of the Holy Roman Empire in World War I and is assigned to a field hospital in Hungary where he falls in love with a mysterious nun serving as a nurse. Mason’s writing sparkles, but the plot is thin to the point of transparency, and the book tends to plod toward its finish. Fiction.

An Unexpected Life by Mary Ann Connell. A bored housewife surreptitiously enrolls in law school against her husband’s wishes and goes on to become house counsel for the University of Mississippi, guiding the school through some of its most momentous legal challenges. This book is a Mississippi Who’s Who of the 60’s through the 2000’s, but more significantly is the tale of an indomitable spirit. A native of Louisville and daughter of a small-town lawyer, Connell’s poignant childhood molded her into an overachiever who relentlessly pursued education and excellence. Non-fiction.

The Warmth of Other Suns by Isabel Wilkerson. The remarkable story of the great migration of blacks from the south to the north from 1915-1970. Told through the lens of three emigrants, one from Mississippi, another from Louisiana, and the third from Florida, the book details the struggles, poverty, and oppression that drove them to seek better fortunes in Chicago, Los Angeles, and New York. They found greater freedom and prosperity, but experienced more discrimination and diminished opportunity than they expected. Woven through the stories of the three is the greater story of the millions who were a part of the mass movement. Non-fiction.

The Jersey Brothers by Susan Mott Freeman. Three brothers from New Jersey enlist in the Navy in World War II. One is stationed in the Phillippines when the islands are overrun by the Japanese and he is taken prisoner. This is the story of the family’s quest to find him. Non-fiction.

 

Do-It-Yourself Modification and Creation of a Child Support Obligation

May 20, 2020 § Leave a comment

Melvin and Karen Krohn were divorced, and Karen had custody of their daughter. The post-divorce period was contentious and litigious, but the parties did agree during one relatively peaceful period that the child could live with Melvin for a time, during which he would be relieved of his $1,500 a month child support obligation,  but the informal arrangement was never reduced to a court order.

When the parties went back on the warpath, one of Melvin’s several claims was that Karen should be ordered to pay him child support for the time when the child was with him, and Karen should be held in contempt for not paying child support during that period. The chancellor denied that relief and Melvin appealed.

The COA affirmed in Krohn v. Krohn, on April 21, 2020. Here is how Judge McDonald’s majority opinion addressed the issue:

¶13. “A chancery court has discretion in determining an award of child support.” Gunter v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019). “To justify the modification of the child-support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties.” Bruton v. Bruton, 271 So. 3d 528, 533 (¶14) (Miss. Ct. App. 2018). For irreconcilable-differences divorces, the parties’ private agreements entered into for the purposes in Mississippi Code Annotated section 93-5-2 (Rev. 2018) are “not enforceable, if not approved by the court.” Sullivan v. Pouncey, 469 So. 2d 1233, 1234 (Miss. 1985). “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).

¶14. In this case, the parties mutually agreed that their minor daughter would reside with Melvin for several months. There was no court order entered concerning this change in custody. Nor did the court ever order Karen to pay Melvin support for those months. Thus, the court had no basis to find Karen in contempt or order her to pay child support retroactively. Although the court gave no reason for denying Melvin’s requested child support for the months the child was living with him, the court relieved him from his court ordered obligation to pay child support ($15,000.00) during these months. Accordingly, we find that the chancery court did not abuse its discretion when it failed to order Karen to pay child support for the months Melvin had the child.

Some ruminations:

  • It’s pretty obvious that Karen could not be in contempt of an unenforceable DIY out-of-court arrangement that had never been approved by order of the court.
  • Although the court cited no authority, the agreement for Melvin to have credit against his child-support obligation during the period when the child lived with him is actually authorized in our case law. In Varner v. Varner, 588 So.2d 428, 435 (Miss. 1991), the parties entered into a similar situation by informal agreement, during which the father reduced his child support by 1/3 because he had responsibility for 1/3 of the children. After the arrangement ended, the mother sued for the back child support. The MSSC acknowledged that the payments were vested when due, and thus could not simply be released. Instead, the court held that the father had in essence contributed the support directly to the child, and he was therefore entitled to a pro-rata credit (in this case 1/3 of the total child support) for that direct support. I posted about Varner in another context yesterday. Varner is a useful case to know; I used it a number of times in my practice.

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