When Influence is Undue
August 6, 2018 § Leave a comment
Kappi Jeffers filed suit against her sister, Korri Saget, claiming that their mother had been subject to Korri’s undue influence in changing life insurance and investment account beneficiaries, and making a will.
The will contest was the subject of a jury trial that resulted in a mistrial. All parties agreed that the evidence at the jury trial was identical to that on the remaining issues, and they submitted the case to the chancellor on the record made at the trial. The chancellor ruled that the evidence did not support a finding of undue influence, and Kappi appealed.
The COA affirmed in an April 23, 2018 opinion in Estate of Saget: Jeffers v. Saget, by Judge Greenlee. Since this opinion illuminates not only the law on point, but also shows how facts in these cases typically unfold, I have quoted at length:
¶9. Kappi raises three issues on appeal. First, she argues that the chancellor erred in finding that she, as the contestant, had the burden of proving undue influence. Secondly, she argues that the chancellor erred by not finding that once a confidential relationship was found between Korri and Rae, a presumption of undue influence arose. Thirdly, she argues that the chancellor erred in applying an incorrect legal standard regarding the presumption of undue influence. Finding that the chancellor’s determination was not manifestly in error, we affirm.
¶10. “Mississippi law is well-settled regarding . . . confidential relationships and undue influence.” Wheeler v. Wheeler, 125 So. 3d 689, 693 (¶12) (Miss. Ct. App. 2013). This law applies equally to testamentary and inter vivos gifts. Id. When asserting undue influence, the initial burden is on the contestant/plaintiff to show “by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]” Howell v. May, 983 So. 2d 313, 318 (¶14) (Miss. Ct. App. 2007). The supreme court has stated that such a “confidential relationship arises when a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed.” Wright v. Roberts, 797 So. 2d 992, 998 (¶17) (Miss. 2001). Once the existence of a confidential relationship is shown, a presumption of undue influence arises, and “the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Id. at (¶16). Further, the supreme court has enumerated several factors to be considered when determining the existence of the confidential relationship:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
In re Estate of Lane, 930 So. 2d 421, 425 (¶13) (Miss. Ct. App. 2005) (quoting In re Dabney, 740 So. 2d 915, 919 (¶12) (Miss. 1999)).
¶11. In the present case, Kappi asserts that the chancellor found that the required confidential relationship existed, and, therefore, the burden shifted to Korri to prove the nonexistence of her undue influence over Rae. However, Kappi’s assertion is neither supported by the evidence nor the record. The chancellor did not make a finding that Kappi had proven the required confidential relationship existed between Rae and Korri. [Fn 5] Moreover, in her judgment, the chancellor discussed and analyzed all seven of the Lane factors. From this analysis it is apparent that there was a lack of clear and convincing evidence of the existence of the required confidential relationship.
[Fn 5] The chancellor’s “Amended Final Judgment” does not find that a confidential relationship existed nor does it explicitly state that Kappi failed to prove a confidential relationship by clear and convincing evidence.
¶12. The chancellor, in her discussion of the Lane factors, found that: (1) insufficient evidence was produced to show Rae was taken care of by others; (2) Rae and Korri had a close relationship; (3) insufficient evidence was produced to show Rae was provided transportation or medical care by others; (4) Rae and Korri maintained a joint bank account; (5) Rae was not physically or mentally weak as she “knew what she wanted and was very clear about it;” (6) Rae was in poor health; and (7) there was no power of attorney. These determinations by the chancellor were supported by substantial evidence. We further note that Korri resided in Houston, Texas and Rae continued to live in Vicksburg, Mississippi until her death—over a year after the changes were made to the investment account designations. The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae. The chancellor went further, finding that there was no undue influence exerted upon Rae in changing the beneficiaries on the investment accounts.
¶13. During the hearing on the matter, the chancellor heard from several witnesses including some of Rae’s family and friends. The chancellor found that there was conflicting testimony as to whether Rae was taken care of by others and whether Rae was provided transportation and medical care by others. Therefore, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006).
¶14. While the record clearly shows that Rae was in poor health, having had numerous surgeries and health issues, the record also indicates that she was a strong-willed woman who “knew what she wanted and was very clear about it.” Several non-family witnesses who spoke with Rae on the day she made the changes to the investment account beneficiaries testified that Rae appeared neither physically nor mentally weak. One such witness, Mittie Town Warren, a close friend of Rae’s, testified that “[Rae] knew what she had” and that “[w]hen she made her mind to do something, then that’s what she was going to do and she did it.” Further, Warren testified that she would see Rae two to three times per week and that on August 23, 2012, “[Rae] knew exactly what she was doing. Nobody influenced her.” Notwithstanding the assertion of Kappi on appeal, the chancellor did not find that Korri had the required confidential relationship with Rae. Furthermore, the chancellor was correct in finding that the beneficiary changes to the accounts were valid. [Fn 6]
[Fn 6] Though appellate courts would prefer that trial court judges make explicit findings on issues we review on appeal, when chancellors make decisions based upon substantial evidence and discuss the required factors leading to informed decisions, we should not reverse for form over substance. See Spain v. Holland, 483 So. 2d 318, 320 (Miss. 1989).
Some comments next week.
“Quote Unquote”
August 3, 2018 § Leave a comment
“What if the catalyst or key to understanding creation lay somewhere in the immense mind of the whale? … Suppose if God came back from wherever it is he’s been and asked us smilingly if we’d figured it out yet. Suppose he wanted to know if it had finally occurred to us to ask the whale. And then he sort of looked around and he said, ‘By the way, where are the whales?'” — Cormac McCarthy
“You can change the terms, you can change the allowable limits, you can do the risk assessment — all these things — but in the end, the fact is that you and I drink that water. You and I breathe that air. You and I live here.” — Winona LaDuke
“For most of history, man has had to fight nature to survive; in this century he is beginning to realize that, in order to survive, he must protect it.” — Jacques Cousteau
Extending the Time to File an Out-of-Time Appeal
August 1, 2018 § 1 Comment
Ordinarily, one must file an appeal to the MSSC from a final judgment within 30 days of the date of entry of that judgment. MRAP 4(g), however, allows the trial judge to extend the time within which to appeal.
After the State of Mississippi had obtained an injunction against him for selling watered-down gasoline at his convenience store, Ali Almasri contested the action in chancery court proceedings. The chancellor entered a permanent injunction on November 23, 2016. On January 17, 2017, Almasri filed a motion to extend the time to appeal stating that he had been unable to “complete a personal analysis of his business” within the 30-day appeal time. On February 2, 2017, the chancellor signed the order extending the appeal time to February 6, 2017. Almasri filed his notice of appeal on January 30, 2017.
On appeal, the State argued that Almasri had failed to demonstrate excusable neglect that would justify extension of the appeal time after the time for appeal had elapsed.
In Almasri v. Hyde-Smith, decided June 12, 2018, the COA agreed and dismissed the appeal. Judge Greenlee’s opinion for a unanimous court explained:
¶13. Our appellate procedural rules require that a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). Should a party need additional time to file a notice of appeal, the trial court may grant an extension under Rule 4(g), which provides:
The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. (Emphasis added).
¶14. In the instant case, the chancery court entered the judgment appealed from on November 23, 2016. The thirty-day appeal period therefore ended on December 23, 2016. Almasri filed his motion to file an out-of-time appeal on January 17, 2017, fifty-five days after the judgment was entered. Therefore, in order to receive additional time to file his notice of appeal, Almasri had the burden of showing that his failure to file a timely notice was a result of “excusable neglect.” Id.; Schmitt v. Capers (In re Estate of Ware), 573 So. 2d 773, 775 (Miss. 1990).
¶15. We review a trial court’s excusable-neglect determination with a bifurcated standard. Nunnery v. Nunnery, 195 So. 3d 747, 751 (¶12) (Miss. 2016). To the extent that the trial court’s excusable-neglect determination involves the determination of legal principles, we will conduct a de novo review. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶5) (Miss. 2007). “[W]hen . . . the trial judge’s decision rests upon an examination of facts, we review for abuse of discretion and to ensure the decision is supported by substantial evidence.” Nunnery, 195 So. 3d at 751 (¶12). “Which standard to apply is a decision to be made on an ad hoc basis.” Id. (citing Bennett v. McCaffrey, 937 So. 2d 11, 14 (¶8) (Miss. 2006)).
¶16. “An excusable-neglect determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 752 (¶15) (internal quotation mark omitted). The Mississippi Supreme Court has adopted the following four-part test for excusable-neglect: “(1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” Id. (internal quotation marks omitted) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993)).
¶17. “[E]xcusable neglect is a very strict standard.” Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002) (internal quotation mark omitted). “[S]imple inadvertence or mistake of counsel or ignorance of the rules usually does not” constitute excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶9) (Miss. 2010); Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶11) (Miss. 2002). “Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166, 169 (¶13) (Miss. Ct. App. 1998).
¶18. In his motion for an extension of time, Almasri stated that “his decision [to appeal] was based upon his own personal business analysis that was not completed until after the [thirty][-]day [filing] period . . . had expired.” Further, he argued that “he at all times acted in good faith” and “his considered decision should amount to good cause . . . to grant his requested extension.” Again, a motion for an extension filed after expiration of the thirty-day filing period requires a showing of excusable neglect, rather than good cause. In re Estate of Ware, 573 So. 2d at 775.
¶19. From the record, it is unclear whether the chancellor granted Almasri’s motion based on good cause or excusable neglect. However, even assuming the chancellor used the correct standard in making his decision, we find that Almasri did not demonstrate excusable neglect. Almasri knew the entry date of the final judgment against him, and there is no assertion that he was unaware of his deadline to file a notice of appeal. Further, Almasri offers no evidence of why he was unable to complete his business analysis within the thirty-day period following final judgment or why such would be excusable neglect. We thus find Almasri’s reason for delay was within his reasonable control. And although Almasri may have acted in good faith, “[e]quity aids the vigilant and not those who slumber on their rights.” In re Estate of Winding, 783 So. 2d 707, 711 (¶15) (Miss. 2001).
¶20. Under Rule 4(g), the chancellor’s discretion to grant Almasri’s motion for an extension was limited; he only had authority to grant the motion upon a showing of excusable neglect. Almasri made no such showing to the trial court. Therefore, we hold that the chancellor abused his discretion in granting Almasri’s motion to extend the time in which to file a notice of appeal.
¶21. This appeal is dismissed for lack of jurisdiction.
I am willing to bet that, had the chancellor said something like, “This isn’t enough; you have to make a record on the elements of excusable neglect,” he would have been accused of nitpicking and met with a whining plea just to sign the order and get it over with. Sometimes, especially when the judge has many other things to tend to, it’s easier for the judge just to shrug his shoulders and say, “Okay, I’ll do it your way.”
Adoption and Joinder of the Spouse
July 31, 2018 § Leave a comment
Yesterday we visited the adoption case In re DDH: Gray and Dotch, focusing on the decision as it relates to termination of parental rights. There is another component to the decision that needs addressing: the requirement in MCA 93-17-3 that a married person seeking to adopt must be joined by his or her spouse.
In 99.9% of adoption cases, the spouses are joined in the case because they are both seeking to adopt the child. But what about where only one spouse is wanting the adoption? Does the other spouse still have to join?
In DDH, Gray, the adoptive father was married to a woman other than Dotch. Gray petitioned only in his name, presumably because it was only he seeking to adopt while keeping intact Dotch’s rights as the mother. Recall that Dotch had always acted in loco parentis toward the child because he and Dotch both believed for most of her life that he was the father. Even after they discovered that he was not, however, he continued his in loco parentis role.
In its opinion, the court addressed the question whether Gray’s wife should have joined in his petition:
¶13. The first section to consider is Section 93-17-3(4). Section 93-17-3(4) provides in pertinent part that “[a]ny person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition.” Miss. Code Ann. § 93-17-3(4) (emphasis added). The petitioners argue that Gray’s wife should not have to join the petition, and the statute “limits the rights of a married person to adopt without his/her spouse being joined as a party to the adoption.”
¶14. Section 93-17-3(4)sets out requirements for an adoption, detailing the jurisdiction and venue for adoption proceedings and detailing the petition’s requirements—such as the joinder of both spouses when married and a doctor’s or nurse practitioner’s certificate of the health of the child. Miss. Code Ann. § 93-17-3(4). The section also governs home studies for adoptions, changing the child’s name, and additional considerations for jurisdiction. Id.
¶15. Section 93-17-3 is unambiguous. The requirements are clear, and we see no reason why they should not be followed in the instant case. Simply put, Gray’s spouse must join him in his petition to adopt D.D.H. Miss. Code Ann. § 93-17-3(4). The plain language of Section 93-17-3(4) does not provide that the joinder of Gray’s spouse means that she will receive any custodial or parental rights [fn 2] or that she is adopting the child. It requires only that she join in Gray’s request.
[Fn 2] Gray’s wife would merely assume the role of step-parent.
¶16. In an adoption proceeding, the best interests of the child are paramount, and the Court reviews adoptions to ensure the chancellor considered the best interests of the child. In re Adoption of D.N.T., 843 So. 2d 690, 706 (Miss. 2003); In re Adoption of P.B.H., 787 So. 2d 1268, 1277 (Miss. 2001). The requirement to include the spouse on the adoption petition, even if the spouse is not the adopting party, enables the best interests of the child to be served. If the spouse is joined, the chancellor would then have the opportunity to consider and, if needed, question the spouse who regularly would be in the adopted child’s life as a step-parent. Further, requiring the spouse to join provides the spouse notice of the adoption petition—as the final decree could possibly affect the spouse’s rights and the inheritance rights of the spouse’s children. Therefore, Section 97-13-3(4)’s requirement to include Gray’s spouse in the adoption proceeding ensures that the best interests of D.D.H. are considered and should be followed in this case.
In Part II of its opinion (¶¶30-33), the court declined to rule on the statute’s constitutionality.
Is Termination of Parental Rights in an Adoption Mandatory?
July 30, 2018 § 1 Comment
In a previous post back in 2015, I pontificated that MCA 93-17-13(2) precludes an adoption action that would leave intact parental rights in the final judgment. You can read it here. The post was premised on the language of MCA 93-17-13(2), the pertinent part of which states, ” … and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent …” in the final judgment of adoption.
Turns out I was sort of right and sort of wrong. In DDH v. Gray and Dotch, decided January 11, 2018, the MSSC reversed a chancellor’s decision denying an adoption that would have resulted in preservation of the mother’s parental rights post-adoption.
In DDH, Patrick Gray and Felecia Dotch had petitioned the court to allow Gray to adopt DDH while Dotch retained her parental rights as mother of the child. The two were never married, but they had engaged in a romantic relationship and believed that Gray was father of the child. DDH lived with Gray’s mother until she was old enough to start school, when she began living with Dotch. Both Gray and Dotch married other people, but Gray continued to visit with and support the child financially. After the child turned 10, they discovered that Gray was not the father; nevertheless, he continued to visit and support the child. They decided that Gray should adopt DDH, but they asked in their petition that Dotch be allowed to retain “care, custody, and control” of her. The chancellor denied the petition based on the language of MCA 93-17-13(2) cited above. Gray and Dotch appealed.
In a decision by Justice Chamberlin, the MSSC reversed. The court noted that MCA 93-17-13(2) begins with the language, “The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child; and its effect, unless otherwise specifically provided, shall be … ” The court pointed out that:
¶18. Section 93-17-13(2) provides the general effect of the final adoption decree. Further, the first part of the statute notes the paramount concern in an adoption: the best interests of the child. It states that the final decree may contain “provisions as may be found by the court to be proper for the protection of the interests of the child . . . .” Miss. Code Ann. § 93-17-13(2). It also states the effect of the final decree “unless otherwise specifically provided.” Id. (emphasis added). Thus, Section 93-17-13(2) makes it clear that the effect of the final adoption decree can be tailored by the chancellor if found to be in the child’s best interest. The Court has addressed the discretion of a chancellor to modify a final adoption decree under the language of Section 93-17-13(2), and although the cases are not completely analogous factually, they provide guidance to the instant issue.
The opinion goes on to examine cases in which the trial courts had tailored the adoption judgment to suit the best interest of the child, including at least one case in which the father’s parental rights were left intact.
The analysis concludes with this:
¶27. Gray has been in D.D.H.’s life since her birth, acting as a natural parent and providing support and care for her. Even upon learning that he was not the natural father, Gray continued to fulfill the role of father in her life. As such, he has been acting “in loco parentis.” Griffith v. Pell, 881 So. 2d 184, 186 n.1 (Miss. 2004) (“A person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal
adoption.”). [Fn omitted] Further, the chancellor noted in the record that the adoption “could be [in] the best interests of the child” and later that it “may be [in] the child’s best interest.”
¶28. Under the facts of the instant case, if the chancellor—on remand—makes a finding that the adoption is in the best interests of D.D.H., the “otherwise specifically stated” language of Section 93-17-13(2) allows Gray to adopt the child and allows Dotch to keep her parental rights. Our holding is narrowly tailored to the following facts: (1) Gray has acted in loco parentis; (2) he is seeking to adopt and would be adopting as the father; (3) he is seeking to raise the child in concert with Dotch, the natural mother; (4) his spouse will be joined to the proceeding, and (5) there are no third parties to the adoption seeking to keep parental rights. [Fn 6]
[Fn 6] We also note that the biological father was properly served and failed to exercise his rights. The chancellor found that “the unknown natural father was served in the manner required by law and was called in open court and did not appear.”
¶29. Further, our holding is based upon the ultimate goal of the Court in adoption proceedings to keep the best interests of the child in the forefront. As we have recognized in the past, “[n]ot all adoptions are ‘traditional.’ The chancellor is in the best position to assess this question with respect to each adoption on a case by case basis.” In re [Adoption of] P.B.H., 787 So. 2d [1268] at 1275 [(Miss. 2001)].
¶30. This is the situation that we, as a Court, hope to see: a child who has a nonbiological father who has continued to care for her—despite his knowledge of the lack of biological kinship—and now wishes to recognize legally his bond with his daughter. We have stated: “[P]arental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs.” Griffith, 881 So. 2d at 186–87.
This is an unusual fact pattern, but the implication of the case is clear that the chancellor has the authority to fashion the final judgment off adoption so as to be in the best interest of the child, even when it means leaving the parental rights intact.
Reprise: An Objection that is no Objection
July 27, 2018 § 1 Comment
Reprise replays posts from the past that you may find useful today.
AN OBJECTIONABLE OBJECTION
September 14, 2011 § 3 Comments
One of the most baffling objections is “Object to the form of the question.” It’s baffling because it doesn’t tell the judge what the real problem is.
It’s actually a lazy objection because it is several objections in one. Problems with the form of the question arise from nine distinct sources, each of which is a separate objection in its own right.
These are the real objections to the form of the question:
- Leading. MRE 611(c) says that “Leading questions should not be used on the direct examination of a witness except as may be used to develop his testimony.” Which means that the judge may grant some leeway in order to ensure that testimony is developed. Leading is, of course, permitted on cross examination, for hostile or adverse witnesses, and for preliminary matters.
- Compound question. You can ask only one question at a time. Often the witness answers only one of multiple questions, not always making it clear which one she is answering.
- Argumentative and Harrassing. This is really two different things. A question is argumentative when it is merely a comment on the evidence, or a legal argument, or an attempt to get the witness to adjudge his own credibility. A question is harassing when the probative weight of the information sought is outweighed by the embarassment to the witness or its outrageous nature. UCCR 1.01 states that “The counsel, parties, and witnesses must be respectful to the court and to each other,” and “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.”
- Asked and answered. You enjoyed the answer so much the first time that you just can’t resist doing it again.
- Assumes facts not in evidence. You have broad scope within the bounds of relevance to develop new facts, but not by framing your questions in such a way that they take as true facts that have not been established. In chancery, with no jury, this is a touch-and-feel objection that the judge may overrule and then disregard the answer.
- Ambiguous and confusing. A question is ambiguous when it is susceptible to more than one interpretation. A question is confusing when it is phrased in such a way that it can be misunderstood.
- Misleading. Misstatement of the witness’s or another witness’s prior testimony.
- Narrative. The question calls for a recitation of the whole story, which may or may not include objectionable material.
- Repetitious. You already made that point. Move on to something else.
Unless you’re objecting just to hear yourself talk, you want your objections to accomplish something for the benefit of your client. General objections like “Object to the form of the question” are an objectionable waste of time. Your chances of getting your objection sustained go up when you make a specific objection.
What You Have to Show
July 25, 2018 § Leave a comment
Whenever chancellors gather the topic often arises that lawyers simply fail to put enough proof in the record to support findings by the court. No R41(b) motion is made, and the judge is left to sort through the incomplete record to come to a conclusion.
That is more or less what happened when Amy Voss sued Daven Doughty for modification of custody or visitation. The two had litigated custody only a month previously and the court had awarded Amy custody of their daughter Aqua, and awarded Daven visitation and enjoined smoking around the child.
After a trial, the chancellor denied Amy’s prayer to modify visitation. She appealed.
In Voss v. Doughty, decided April 10, 2018, the COA affirmed. Judge Wilson wrote for the unanimous court:
¶18. Voss also argues that the chancellor erred by denying her petition to modify and limit Doughty’s visitation. The chancellor denied Voss’s petition after finding that there had been no “change in circumstances” since the original visitation order. The chancellor’s ruling arguably misapplied the law concerning modification of visitation. “All that need be shown [to obtain a modification of visitation] is that there is a prior decree providing for reasonable visitation rights which isn’t working and that [modification] is in the best interests of the children.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). On this issue, “our familiar change in circumstances rule has no application.” Id. (citation omitted).
¶19. Nonetheless, we affirm on this issue because no evidence was presented that the visitation schedule was not working or was not in Aqua’s best interest. Voss petitioned the court to modify custody only thirty-six days after the original visitation order was entered. A “visitation plan should be given an opportunity to work.” Jones v. McQuage, 932 So. 2d 846, 849 (¶14) (Miss. Ct. App. 2006) (holding that there was no evidence that a visitation schedule was not working four months after its entry). Voss did not give the original visitation plan in this case an opportunity to work.
¶20. Moreover, Voss failed to prove that the original visitation plan was not working. She alleged that it was not working only because Aqua was being exposed to smoke while she was with Doughty. A representative from a drug testing company testified that a January 6, 2016 hair follicle test showed that Aqua had absorbed and metabolized nicotine from secondhand or thirdhand cigarette smoke. However, the witness testified that the test detected nicotine absorption dating back six months, so it could have reflected exposures prior to the chancery court’s prior custody order. The witness also testified that the test did not identify when or where the exposure occurred or “whether it was once, twice, or three times”—only that it occurred sometime in the prior six months.
¶21. A pediatric pulmonologist, called by Voss as an expert witness, testified that “any nicotine level in your body is significant.” He opined that Aqua’s “chronic runny nose,” coughing, congestion, and other “upper respiratory” issues “could be attributable to . . . exposure to [cigarette] smoke.” However, he acknowledged that “a lot of things” can cause such issues, that none of Aqua’s treating physicians have attributed these issues to exposure to cigarette smoke, and that Aqua does not have asthma. The witness had never seen or examined Aqua, and his opinions were based solely on a review of her medical records.
¶22. Doughty and Ashley admitted that they smoke, but both denied that they smoke in their house or in Aqua’s presence. They admitted that Ashley’s mother, who pays most of their bills and has paid some child support for Doughty, does smoke in her bedroom with the door closed. They denied that they allowed anyone to smoke in Aqua’s presence.
¶23. Obviously, parents should not expose their children to cigarette smoke. However, the evidence indicated that Doughty tried to protect Aqua from exposure, and there was no clear link between exposure and Aqua’s congestion, runny noses, and coughing. Especially given the short time between entry of the prior custody order and Voss’s petition to modify visitation, there was insufficient evidence that the visitation schedule was not working. We therefore affirm the chancellor’s denial of Voss’s petition to modify visitation.
Some random thoughts:
- The familiar material-change/adverse-effect rule does not apply in an action to modify visitation; all that needs to be shown is that the existing visitation order is not working.
- You have got to allow time for the order to prove to be unworkable. Not only was this a quick turnaround, it did not allow time for the expert to rule out pre-injunction behavior.
- Of course, no one is required to wait if there is a true emergency affecting the health or safety of the child. But there has to be a true peril, and it has to be imminent.
- Here, the proof offered by Amy did not rise to that level.
- Making sure that all of the elements get proven by competent proof is on you.
A More Humane Family Court
July 24, 2018 § 4 Comments
Sue Cochrane served for 18 years as a Family Court Judge in Minnesota, until she was diagnosed with terminal cancer. She left the bench to concentrate on her health, and she blogs at The Movement of Healing, the focus of which, she says, is “on positive, uplifting and inspiring people, ideas and stories.”
The Fetzer Institute Blog did a post on Judge Cochrane’s ideas about a more humane approach to family law:
Sue Cochrane, JD, served 18 years on the family court bench. Her goal as a judicial officer: to bring family law into closer alignment with its mission to serve the needs of the public … and to do it with kindness. Quickly she learned the power of working with families as equals, without judgment. Through the years she has worked to empower families to create their own solutions through collaboration and to find ways to bring a vibrant and beating heart to the body of family court. This reflection is excerpted from her article “Putting a Heart into the Body of Family Law,” which first appeared in The Collaborative Review, a publication of the International Academy of Collaborative Professionals. The image that accompanies this post was done in a true spirit of collaboration between mother (Sue Cochrane) and her son Tom Cochrane-Cole, who begins art school this fall.
Envisioning a Family Court of the Future
The law is well known for being logical and dispassionate—linear and analytic thinking prevail in our courts. But in the admirable pursuit of truth and justice, the court can inadvertently deny the humanity of the very people it exists to serve.
When families are in conflict or in crisis, logic is insufficient to heal their pain and trauma. Human beings are not abstract legal concepts, after all. In family court, it is as much a matter of the heart as the head, but our deepest values, like empathy, care, and compassion are often treated as irrelevant in such a system. This is why many people—judges and lawyers included—find the legal profession unsatisfying, ineffective, and potentially harmful, especially in the realm of family conflict.
We’ve made huge strides in criminal courts by focusing on issues and needs: DWI court, drug court, mental health court, veterans court, homeless court, juvenile court, and more. They acknowledge the limitations of the traditional courts and bring in a holistic collaboration of services that respond swiftly and effectively to complex needs. We have barely scratched the surface of what we can do in family courts if we open up to innovation and collaboration from many angles and disciplines.
We can put a “heart” into the “body” of law known as family court, with five basic changes:
1. Put People First
Families in crisis need a place that welcomes them, all aspects of them, including their emotions. They need and deserve to be respected, heard, and included. Creating a system committed to meeting their needs above all other agendas is first.
2. Listen, Be Kind and Compassionate
I learned most clearly during my time on the bench that ultimately it was my listening skills that were most needed. People need to have their story heard, all of it. To me, this is the essence of a “court hearing.”
I found that people need to be accepted, with dignity, with their mistakes, their anger, their stress, and their pain.
This opening allows people to choose a path congruent with their deepest values. Not once did they need to be judged.
3. Allow People a Voice
At the most basic level, access to justice means allowing people to have a voice. Family courts should not judge the families who come for help. Instead, courts should empower people to solve their own problems with respect and care. If people received this from the moment they walked in, judges would rarely be needed.
4. Create a Space for Healing
The physical space of family court should be redesigned to focus on the needs of those who use it. As an example, the cost of incorporating art and design that calms people and heals trauma will be more than offset by the benefits received by families in pain, not to mention those who work there every day.
5. Shift Resources
Less than 5% of all family court cases go to trial. So why do courts insist that everyone file papers, receive a case number, pay hundreds of dollars for a filing fee, get a court date to see a judge, and then wait? Why are the 95% of those who will settle without a trial penalized unnecessarily?
Courts no longer need a full complement of trial judges and staff “at the top” when only 5% of families go to trial. Significant resources should be shifted to the point of first contact for families who arrive there, with or without lawyers. Collaborations with professionals at the entry level could provide helpful and responsive service immediately, cutting through all those untimely and unnecessary bureaucratic steps to get right to the heart of their problem.
When trying to work with or change systems, I am inspired by the Dalai Lama’s invocation:
Be kind whenever possible.
It is always possible.
Setting Aside a Default Judgment
July 23, 2018 § 1 Comment
MRCP 55 governs defaults.
R55(a) states that “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
R55(b) provides: “In all cases the party entitled to a judgment by default shall apply to the court therefor. …”
R55(c) says that: “For good cause shown, the court may set aside a default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”
This is R60(b):
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.
Aside from the plain language of the rules, how have the courts addressed the setting aside default judgments?
The COA’s decision in Emery v. Greater Greenville Housing and Revitalization Association, handed down June 12, 2018, took on the appellant’s claim that the chancellor erred in refusing to set aside a default judgment entered against him. Judge Carlton wrote the opinion:
¶23. As the Mississippi Supreme Court has explained, “[a]ccording to Rule 55(c), a default judgment may be set aside ‘[f]or good cause shown’ and in accordance with Rule 60(b).” BB Buggies, Inc. [v. Leon], 150 So. 3d [90] at 101 (¶23) [(Miss. 2014)] (quoting M.R.C.P. 55(c)). The Court has articulated a three-pronged balancing test the trial court must apply in determining whether to set aside a judgment pursuant to Rule 60(b):
(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default,
(2) whether the defendant in fact has a colorable defense to the merits of the claim, and
(3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.
Id. As noted above, we apply an abuse of discretion standard in reviewing the chancery court’s denial of Emery’s motion to set aside the default judgment. If the chancery court’s decision is based upon an error of law, however, we will reverse. Tucker [v. Williams], 198 So. 3d 299, 309 (¶24) [(Miss. 2016)].
The decision goes on to analyze the facts of this particular case over the next dozen pages, reaching the conclusion that Emery failed to prove the necessary elements, and that the chancellor was not in error by refusing to set aside the default. You can read the opinion for yourself. It’s too lengthy and case-specific to be reproduced here.
Usually the lawyer is called upon to rescue the client from the client’s own failure and neglect to tend to his or her business that resulted in the default. That puts the lawyer in the unenviable digging-out-of-the-hole mode.
Sometimes it’s the lawyer’s oversight that put the client in the default hole. Don’t expect the chancellor to cut you any more slack than she would a lay person in the same situation. You still have to prove good cause, colorable defense, and nature of any resulting prejudice.
A Witness for Peace
July 20, 2018 § 4 Comments
Christianity does not have a monopoly on understanding the nature and operation of peace, love, and forgiveness. One of the most powerful exemplars of these treasured traits is Malala Yousafzai, a 15-year-old Pakistani Muslim girl whom the Taliban tried to kill because of her activism for the right of education, a pursuit forbidden to females by Muslim fundamentalism.
This is part of her testimony before the United Nations:
Dear friends, on 9 October 2012, the Taliban shot me on the left side of my forehead. They shot my friends, too. They thought that the bullets would silence us, but they failed. And out of that silence came thousands of voices. The terrorists thought they would change my aims and stop my ambitions. But nothing changed in my life except this: weakness, fear and hopelessness died. Strength, power and courage was born. I am the same Malala. My ambitions are the same. My hopes are the same. And my dreams are the same.
Dear sisters and brothers, I am not against anyone. Neither am I here to speak in terms of personal revenge against the Taliban or any other terrorist group. I am here to speak for the right of education for every child. I want education for the sons and daughters of the Taliban and all the terrorists and extremists.
I do not even hate the Talib who shot me. Even if there was a gun in my hand and he was standing in front of me, I would not shoot him. This is the compassion I have learned from Mohamed, the prophet of mercy, Jesus Christ and Lord Buddha. This the legacy of change I have inherited from Martin Luther King, Nelson Mandela and Mohammed Ali Jinnah. This is the philosophy of nonviolence that I have learned from Gandhi, Bacha Khan and Mother Teresa. And this is the forgiveness that I have learned from my father and from my mother. This is what my soul is telling me: be peaceful and love everyone.
Jesus said it this way: “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbor as thyself. On these two commandments hang all the law and the prophets.”
In 2014, Malala was awarded the Nobel Peace Prize.
On June 14, 2018, a US drone strike in Pakistan’s northeastern Kunar Province killed Taliban chief Mullah Fazlullah, the insurgent leader who ordered Malala’s assassination.
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