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.
No Child Support is a No-No
May 19, 2020 § 4 Comments
Only last week I had two PSA’s presented to me in which the parties agreed to waive child support for the non-custodial parent. I refused to sign the judgments. The reason is that the parties are not at liberty to enter into such an agreement. The law could not be clearer.
This is from the case of Varner v. Varner, 588 So.2d 428, 432-33 (Miss. 1991):
Courts award child support to the custodial parent for the benefit and protection of the child. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Sorrell v. Borner, [593 So.2d 986, 987 (Miss. 1991)]; Cumberland, 564 So.2d at 847; Alexander, 494 So.2d at 368; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). Such support obligations vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid. Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016–17 (Miss.1990); Cumberland, 564 So.2d at 847; Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The only defense to an action therefor is payment.
No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity. The interest of children weighs in the judicial mind far heavier than those of either parent.
Cumberland, 564 So.2d at 847.
In Calton v. Calton, 485 So.2d 309, 310–11 (Miss.1986), this Court refused to recognize a contract between divorced parents, containing a covenant not to sue for child support. We agreed with the Florida court in Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); that
[t]he basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations; “children are not chattels whose rights can be bargained away by parents”….
Calton, 485 So.2d at 310; see also, Lawrence v. Lawrence, 574 So.2d at 1381.
Negotiation to obtain a divorce is devilishly difficult in Mississippi because of the codified “divorce blackmail” that is engrafted into our law. I know that you have parties who say that if you will just draft it so that the party with the upper hand can walk away with no bothersome financial obligations and they can move on to the next chapter. But the children are entitled to be supported, and the parents can not do away with it by agreement.
New MRCP
May 18, 2020 § Leave a comment
As I mentioned here before, the MSSC’s advisory committee on civil rules spent two years combing through the MRCP to identify language that needs to be updated, changed to reflect case law, and otherwise revised. A slew of proposed changes were sent up from the committee.
My earlier post is at this link.
This week the court handed down orders granting the committee’s motions on Rs 1 (Scope of the Rules), 15 (Amendments), 43 (Taking of Testimony), 63 (Disability of a Judge), and 71A (Eminent Domain). These particular amendments are minor and eliminate redundant and non-useful matter. The changes take effect July 1, 2020.
Proposed changes to Rs 6 and 56 are up for comment. The changes to 56 are particularly noteworthy.
This batch of amendments are likely harbingers of more to come, and you need to pay attention to what the court is doing so that you comply with and adapt to the changes.
Testimony of a Spiritual Advisor
May 13, 2020 § 3 Comments
Robert and Daphne Cobb were married on July 25, 2011. At the time of the marriage, both knew that they had been diagnosed with cancer. Robert’s was the more severe case. He retired from his job and, four days before he succumbed to his cancer on February 12, 2012, signed forms that made Daphne beneficiary of his retirement funds totalling nearly half a million dollars. His sons, Bruce and Zach, had originally been the beneficiaries. After Robert died, the sons sued to set aside the transaction designating Daphne as beneficiary, charging undue influence or lack of capacity. The chancellor ruled against them, and they appealed.
One of the claims they raised on appeal was that the chancellor erred in admitting the testimony of Chatham, Robert’s spiritual advisor.
In Cobb v. Cobb, handed down April 28, 2020, the COA affirmed. Judge McDonald wrote for the majority:
¶29. Bruce and Zach claim that the chancery court erred in allowing Chatham to testify. We disagree. Private and confidential communications with clergy may be excluded as evidence by a person with standing to raise such a privilege. M.R.E. 505. Here, Bruce and Zach did not have standing to raise the privilege. M.R.E. 505(c). Moreover, Chatham did not testify to his “communications with Robert,” but rather about Chatham’s observations of Robert during Chatham’s interaction with Robert. See M.R.E. 505(a)(2), (b). Moreover, Mississippi Rule of Evidence 505 does not apply unless a communication is made “to a clergyman in his professional character as spiritual advisor.” Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1245 (¶116) (Miss. 2005) (quoting M.R.E. 505(b)).
¶30. In this case, Chatham did not testify to “communications” with Robert; Chatham merely described his observations of Robert’s speech and abilities during their visits. Moreover, this contest to the beneficiary change was brought by Bruce and Zach individually—not on behalf of Robert’s estate or as Robert’s personal representative. Therefore, neither son has standing to object to any of Chatham’s testimony, even communications with Robert. Accordingly, Chatham’s testimony was admissible.
Some thoughts:
- The sons lacked standing because they brought the action individually and not on behalf of the estate or as Robert’s administrator or executor. If there were privilege to assert here, it was Robert’s privilege, not theirs. I see lawyers do this every now and then in issues of privilege and in objecting to discovery; they assert claims that are not theirs on behalf of witnesses and even the other party.
- The testimony was not about the substance of communications, but rather about what Chatham observed with his senses. That’s the key distinction here, and it’s a nuance that some lawyers overlook in the heat of trial. They keep trying to find inventive ways to get hearsay into the record and never ask the witness what she observed about the speaker’s demeanor, or what the speaker was doing while she spoke (e.g., wringing her hands, holding her face in her hands and rocking back and forth, crying, tone of voice).
Delay, Delay, Delay … Dismissal
May 12, 2020 § Leave a comment
After the chancellor dismissed her contempt case against her ex-husband, Damon Spears, for failure to prosecute, Rita Carter appealed.
In Carter v. Spears, handed down April 28, 2020, the COA affirmed. Judge Cory Wilson wrote for the unanimous court:
¶11. “For failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of court, a defendant may move for dismissal of an action or of any claim . . . .” Miss. R. Civ. P. 41(b). We consider “[w]hat constitutes a failure to prosecute . . . on a case-by-case basis.” Cox v. Cox, 976 So. 2d 869, 874 (¶14) (Miss. 2008). “The supreme court has provided considerations to be weighed in determining whether to affirm a Rule 41(b) dismissal with prejudice: ‘(1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other aggravating factors.’” Sullivan v. Maddox, 283 So. 3d 222, 234-35 (¶54) (Miss. Ct. App. 2019) (quoting Cox, 976 So. 2d at 874 (¶14)). “‘Delay alone may suffice’ for dismissal under Rule 41(b).” Holder, 54 So. 3d at 198 (¶20) (quoting Cox, 976 So. 2d at 875 (¶18)).
¶12. “We acknowledge that ‘[t]here is no set time limit on the prosecution of an action once it has been filed . . . .’” Sullivan, 283 So. 3d at 235 (¶55) (quoting Holder, 54 So. 3d at 197 (¶17)). “We also are mindful of the fact that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue [her] claim, and any dismissals with prejudice are reserved for the most egregious cases.” Holder, 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1034 (¶11) (Miss. 1999)). “However, if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld.” Hensarling v. Holly, 972 So. 2d 716, 720 (¶8) (Miss. Ct. App. 2007). “[T]he cases in which [the supreme court] has affirmed the dismissal of a complaint for failure to prosecute often feature a substantial period of delay that clearly evinces the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99 LLC v. Pike County, 242 So. 3d 847, 854 (¶23) (Miss. 2018) (citing Manning v. King’s Daughters Med. Ctr., 138 So. 3d 109, 116 (¶21) (Miss. 2014) (affirming dismissal where plaintiff filed a complaint but then took no further action for two years, did not respond to discovery requests, and waited a year before responding to defendant’s motion to dismiss)).
¶13. Here, even discounting the lengthy procedural delays pre-dating her 2014 petition, [Fn 2] the record since Carter filed her most recent petition shows substantial periods of delay coupled with a disregard of deadlines set by both court orders and procedural rules. After Carter failed to prosecute her 2014 contempt petition for over a year, the chancery clerk filed a notice of dismissal in 2015. In response, Carter filed a perfunctory motion to set a trial date but then did not further pursue her claims for over another year. During that interval, she ignored deadlines imposed by both the discovery rules and the chancery court itself. As a result, the chancery clerk filed another notice of dismissal and motion to dismiss for want of prosecution in March 2017. A similar pattern of superficial activity by Carter ensued, until Spears filed his own motion to dismiss for failure to prosecute—the third such motion as to Carter’s 2014 petition—in May 2018.
[Fn 2] Measured from when Carter filed her March 7, 2011 petition, there were three lengthy periods of inactivity, the first lasting two years and three months, the second spanning one year and one month, and the third lasting one year and three months. In its order, the chancery court appeared to consider this aggregate four-year, seven-month delay in granting Spears’s motion to dismiss. But Carter’s 2011 petition was dismissed in July 2013, on the chancery clerk’s first notice of dismissal, such that the relevant yardstick for measuring delay in the instant appeal begins with Carter’s 2014 petition. Regardless, the procedural history before and since Carter’s 2014 petition substantiates a “clear record of delay or contumacious conduct by the plaintiff.” Sullivan, 283 So. 3d at 235 (¶54).
¶14. Carter took two years and five months to respond to discovery requests Spears propounded on October 9, 2015, and then only provided unverified and incomplete responses. Carter’s delay occurred in the face of the first of two motions to compel filed by Spears, court orders directing Carter to provide discovery responses, and the third notice of dismissal for want of prosecution from the chancery clerk. Carter’s “substantial . . . delay . . . clearly evince[d] the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99, 242 So. 3d at 854 (¶23). Our supreme court has made clear that “repeated failures to comply with discovery warrant dismissal with prejudice.” Holder, 54 So. 3d at 198 (¶21); see also Hillman v. Weatherly, 14 So. 3d 721, 727 (¶20) (Miss. 2009) (finding clear record of delay where plaintiff did not respond to discovery requests until both defendant and circuit clerk had filed motions to dismiss for want of prosecution). Based on the foregoing, we find no error in the chancery court’s finding that there was a “clear record of delay or contumacious conduct” on Carter’s part.
¶15. We likewise find no abuse of discretion in the chancery court’s determination that lesser sanctions would not better serve the interests of justice and that Carter’s pattern of dilatory conduct caused significant prejudice to Spears. “Lesser sanctions may include ‘fines, costs, or damages against plaintiff or [her] counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’” Holder, 54 So. 3d at 200 (¶32) (quoting Days Inn, 720 So. 2d at 181-82 (¶17)) (internal quotation and citations omitted); but see Cox, 976 So. 2d at 876 (¶26) (finding “that lesser sanctions would not suffice” when “lesser sanctions could not cure the prejudice to [defendant] caused by the delay”). The presence of aggravating factors, while not required to justify dismissal under Rule 41(b), may strengthen the trial court’s decision to dismiss an action. Cox, 976 So. 2d at 876 (¶27). Such factors include “the extent to which the plaintiff, as distinguished from [her] counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” Days Inn, 720 So. 2d at 181 (¶13) (quoting Rogers v. Kroger Co., 669 F. 2d 317, 320 (5th Cir. 1982)).
¶16. Here, the chancery court weighed “any aggravating factors or prejudice to Spears,” finding that
[t]he passage of time for many of these expenses claimed by Carter is at least six (6) years, and in some instances there are expenses that occurred over thirteen (13) years ago. Whether these expenses were timely provided by Carter to Spears is an issue in this case, and there is an issue of whether either Spears or Carter can provide recollection of when these bills were actually submitted . . . . This prejudice caused by fading memories due to the passage of time can be presumed to support the dismissal of this action under Rule 41(b).
(Citing Holder, 54 So. 3d at 200 (¶30)). The chancery court also found that the total amount of time that passed when Carter took no activity to advance her claims is four (4) years and seven (7) months. Additionally, Carter’s responses to Spears’[s] discovery were not served until two (2) years and five (5) months after [the requests] were served. Carter filed no response to Spears’[s] motion [to dismiss], and provided no justification for these delays. The chancery court concluded that “[u]nder these circumstances . . . there is no lesser sanction that would serve the interests of justice other than dismissing Carter’s [p]etition.” As we concluded in Holder, “[t]oday’s case is not an isolated incident of one missed deadline or a short, delayed response.” 54 So. 3d at 200 (¶33). Accordingly, we find no abuse of
discretion in the chancery court’s findings or its ultimate dismissal of Carter’s claims under Rule 41(b).
It’s a never-ending source of bafflement to me how some cases drag out almost to infinity, seeming to proceed, if at all, at the pace of a sea slug crawling across the bottom of the ocean crossing from the beaches of California to the shores of Bali. Some, I am sure, are due to lack of cooperation by one or more parties, but some are attributable to the inattention or lack of interest by the attorney(s). One source of lost interest is when you charge a flat fee and get paid up front. Once the money is safely in your firm account, motivation wanes.
What to Expect in the End Times
May 11, 2020 § 3 Comments
As this blog wanes toward its conclusion, here are a few points …
- I will see that the blog continues to be accessible so that you can access its content all the way back to 2010, when it started.
- The only change will be that there will be no new posts after June 15, 2020.
- That means that if you copy some authority to use in a pleading, motion, or brief, be doubly sure that you research to determine whether it is still good authority or whether changes in the law have affected it.
- In the meantime, I’ll continue posting as I have.
The End is Near
May 8, 2020 § 24 Comments
No, not that end; this end.
June 14, 2020, will be the 10th anniversary of this blog. Ten years is a long time for anything, much less a blog that requires weekly attention.
Every June anniversary since I started this I have said that I would continue as long as I enjoyed doing it. Around the beginning of January I began to feel that the burden had begun to outweigh the enjoyment. I found that I was resisting making time to compose these posts, so that I didn’t have a cushion of at least a couple of weeks scheduled ahead, and that created unenjoyable pressure. It had begun feeling more like a chore than an enjoyable project.
I began thinking the unthinkable: how much longer can I keep this up? I wondered whether my feelings might change. After all, we all go through slumps.
But here we are in May and my feelings haven’t changed. The Covid-19 quarantine has brought home to me that I can take a more relaxed approach and still perform at a high level. It taught me, too, that I can slough off some things that I have been toting around without creating an existential threat. One of those things is this blog.
So, my friends, my last post here will be June 15, 2020, when I will bid you a bittersweet farewell. Fear not, the site will remain up; just no more new posts after the closing date.
More on the denouement Monday.
The Better Chancery Practice Blog 