The State of Law Practice in the State
March 13, 2018 § 4 Comments
Fifteen years ago it was not uncommon to see trials going on before both chancellors in our district as many as four or five days a week. By ten years ago that had slowed somewhat, but the number of court hearings was robust. Now, hearings and filings are down, except perhaps in probate matters. What’s the deal?
An article by a “Legal Marketing Expert” in The Above the Law Blog had this to say about the phenomenon in other parts of the republic:
It was easier to be a lawyer a decade ago – the demand for legal services always seemed to be growing, along with the revenue and profit that came with it. With the Great Recession, everything changed. The flow of clients slowed while competition increased, leaving profit margin and productivity to suffer.
If the latest Report on the State of the Legal Market from Georgetown University Law Center and Thomson Reuters Legal Executive Institute is any indication, the trend continues. Consider their findings from 2017:
- Only intellectual property, tax and corporate work saw modest gains in business, but demand has waned in all other practices – including general litigation, which makes up for 30% of all practice activity.
- The number of attorneys at U.S. law firms increased by 1.3% in 2017, but there’s less work. On average, lawyers are working 156 fewer hours than in 2007.
- Profits remain stagnant, except for a few of the AmLaw 100, but even most of them experienced modest financial returns.
Even so, the competition is poised to further disrupt the marketplace. You may have heard that AVVO, the first company to take the legal marketplace online, has just been purchased by Internet Brands. A news release noted that AVVO attracts more than 100 million visitors annually, and that Internet Brands has seen “strong growth over the past decade.”
So it appears there is, indeed, a strong demand for legal services – just not from traditional law firms. This points to one of the reasons that many law firms may be stagnating: They still operate like it’s 2007. They cling to the traditional law firm model, do things the way they’ve always done before and, of course, get the same results. This is more than just a hypothesis when you consider the findings of the Thomson Reuters 2017 State of U.S. Small Law Firms Report which reveals that while:
- 75% are finding it challenging to acquire new business, 71% aren’t doing anything about it.
- 70% say they spend too much time on administrative tasks, 81% aren’t doing anything about it.
- 61% want more control over costs and expenses, 74% aren’t doing anything about it.
- 59% say clients are demanding more for less, and 80% aren’t doing anything about it.
Only the firms that break from tradition and adapt to a new way of thinking will survive the tenuous landscape. And, as noted above, that’s currently just a small fraction. The strategies often used in past to overcome market declines such as expense cuts and rate increases, are less likely to be as effective going forward.
Embracing change will allow firms to more effectively compete and be better positioned to take hold of the marketplace that typically seeks alternative legal services. This is underscored by the Thomson Reuters Legal Executive Institute, which says the future could be brighter for firms that proactively provide clients the value they’re looking for.
Okay, can’t disagree much with the premise, but that’s like saying “plague is caused by germs.” What we want is the vaccine; the cure. If the “traditional law firm model” doesn’t work, then what does?
To me, the most revealing dynamic in that article is that “clients are demanding more for less.” Clients access all kinds of free general legal advice, data, and information on Google and don’t understand why you have to charge them for the particularized advice and counsel you provide. Clients can buy generalized form pleadings and agreements online for a fraction of what you must charge to tailor documents to their needs. Although many of those DIY, one-size-fits-all rigs wind up back in court to fix their built-in flaws, I guess people think it’s worth the chance that they won’t.
“[T]he future could be brighter for firms that proactively provide clients the value they’re looking for.” How does a small-town practitioner do that? The expert doesn’t reveal the secret in her article. Or maybe there’s no real secret to reveal. Maybe one must just be aware and keep trying new techniques until something clicks. The only credentials I have to offer for that advice are my 33 years of private practice in which I had to do that very thing through all kinds of ups and downs of the legal profession. Since I’m not a “Legal Marketing Expert,” there’s no charge.
When Objection to Administration is a Shareholder’s Derivative Action
March 12, 2018 § Leave a comment
Frankie Don Ware’s will directed that shares of three closely held corporations be distributed by his estate to a testamentary trust. When his widow, Carolyn, filed to close the estate and distribute the shares as directed, Frankie’s son, Richard, filed an objection arguing that the corporate bylaws required that the shares be offered first to the corporation before transfer. Carolyn responded that Richard lacked standing to object. Richard took the position that he had standing in his capacity as trustee of the testamentary trust. The chancellor agreed with Richard, and Carolyn appealed.
In Estate of Ware v. Ware, decided March 1, 2018, the MSSC reversed and remanded, holding that Richard did not have standing. Justice Randolph penned the opinion for a unanimous court:
¶16. Carolyn argues that Richard’s objection to the closing of the estate is a shareholder derivative action, and therefore Richard lacked standing to object. Despite Carolyn’s raising this issue throughout the proceedings, the trial court declined to address Richard’s standing.
¶17. “Standing is a jurisdictional issue.” Hotboxxx, LLC v. City of Gulfport, 154 So. 3d 21, 27 (Miss. 2015) (citations omitted). Therefore, “it may be raised by the Court sua sponte or by any party at any time, and the standard of review is de novo.” Id.
¶18. Carolyn cites Bruno v. Southeastern Services, Inc., 385 So. 2d 620, 622 (Miss. 1980), in which this Court adopted the rule
that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation.
¶19. Richard argues that his claim is not a shareholder derivative claim, but rather, an objection to the administration of the estate. Richard argues that because he is named a trustee of the trust created by Frankie’s will, he has standing to object to the closing of Frankie’s estate. Thus, Richard argues that Carolyn’s standing argument, as it applies to shareholder derivative actions, is inapplicable. Notably, Richard cites no authority for his position that his title of trustee confers upon him standing to object to the administration of an estate. Regardless, his argument is without merit. Richard is attempting to prevent assets from being distributed to the trust. “A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.” Miss. Code Ann. § 91-8-811(a) (Rev. 2013) (emphasis added). Richard’s title of trustee alone is insufficient to confer standing unless he is enforcing claims on behalf of the Frankie Ware Family Trust or is defending claims against the family trust. Id.
¶20. In order to address standing, the Court must determine whether Richard “had the right to participate in this cause of action.” City of Picayune v. Southern Reg’l Corp., 916 So. 2d 510, 519-520 (Miss. 2005). “Fundamental to this review” is what body of law applies to the dispute. Id. Accordingly, whether Richard’s action is indeed a shareholder derivative action will determine what law applies, and in turn, determine Richard’s standing.
¶21. “[I]n determining whether the action belongs to the corporation or the individual, the focus of the inquiry is whether the corporation or the individual suffered injury.” Scafidi v. Hille, 180 So. 3d 634, 647 (Miss. 2015) (quoting Mathis v. ERA Franchise Sys., Inc., 25 So. 3d 298, 303 (Miss. 2009)). “The action is derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual shareholders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets.” Id. Richard’s objection to the closing of Frankie’s estate is, in reality, a shareholder derivative claim. Richard was seeking solely to enforce a putative corporate right. As such, the law applying to shareholder derivative actions must apply. See City of Picayune, 916 So. 2d at 519-520 (holding that “different standing requirements are accorded to different areas of the law,” and finding that because corporate law applied to the action, citizens did not have standing to challenge actions by a corporation).
¶22. In Mississippi, a shareholder may not institute a derivative suit unless certain statutory conditions are met. 3 Miss. Practice Encyclopedia of Miss. Law § 22:210 (2d ed. 2017). Mississippi Code Section 79-4-7.41(1) (Rev. 2013) provides that a shareholder may not commence a derivative suit unless he or she was a shareholder at the time of the act or omission in question. Mississippi Code Section 79-4-7.41(2) requires that the shareholder fairly and adequately represent the interests of the corporation. Furthermore, Mississippi Code Section 79-4-7.42 (Rev. 2013) requires the complaining shareholder to make a written demand upon the corporation or appropriate officers prior to commencing the proceeding, and section two of that statute requires ninety days to elapse after the written notice, unless the corporation earlier rejects the demand, or unless irreparable injury to the corporation would result by waiting for the ninety-day period to elapse. Finally, our caselaw requires that the corporation is made a party to the derivative action. See Bruno, 385 So. 2d at 622 (“The corporation is an indispensable party” to a shareholder derivative action); see also Fairchild v. Keyes, 448 So. 2d 292, 294 (Miss. 1984) ([T]he corporation is an indispensable party to
a suit brought to protect its interest . . . .”).
¶23. “The rationale for these procedural prerequisites has to do with the corporation’s status as a creature of the State.” 3 Miss. Practice Encyclopedia Miss. Law § 22:210 (2d ed. 2017). “Since the corporation is a separate entity, the shareholder has no legal interest in any of its property.” Id. These conditions “avoid multiple lawsuits, preserve creditors’ rights since any recovery will belong to the corporation, and provide for any recovery to benefit all shareholders.” Id.
¶24. Richard failed to satisfy the statutory conditions required of shareholder derivative actions. Notwithstanding, Richard argues that, even if his action is considered a shareholder derivative action, the chancery court has discretion to disregard the procedural prerequisites and treat the claim as a direct action if it makes certain findings under the Derouen doctrine. Derouen v. Murray, 604 So. 2d 1086, 1091 n.2 (Miss. 1992). The trial court declined to address the question of whether Richard’s action was a shareholder derivative action, and never made any findings under Derouen. In Derouen, this Court did not overrule Bruno, but stated in a footnote that [i]n the case of a closely held corporation . . . , the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons. Derouen, 385 So. 2d at 622. This Court later interpreted the Derouen doctrine to hold “that in derivative suits involving closely held corporations, the trial court may award damages on an individual basis, provided certain safeguards are met.” Investor Res. Servs., Inc. v. Cato, 15 So. 3d 412, 424 (Miss. 2009). Indeed, the facts of Derouen involved a shareholder
seeking individual recovery for his fifty-percent equity interest in proceeds from the business. Derouen, 604 So. 2d at 1089-90.
¶25. Here, Richard is not seeking individual recovery or individual damages. Rather, he has brought an action to enforce corporate bylaws. The Derouen doctrine does not apply because Richard does not seek individual recovery, but rather seeks to redress alleged wrongs to the three corporations.
¶26. The holding in Bruno applies in this case. Richard lacked standing to bring suit because the right belongs to the three corporations. It is of no consequence that Richard owns half of the shares of stock, as Bruno explicitly applies to closely held corporations, where “the complaining stockholder owns all or substantially all of the stock of the corporation.” Bruno, 385 So. 2d at 622. Accordingly, Richard lacked standing under Bruno to assert a claim individually on behalf of the corporations.
Thoughts:
- Although shareholder derivative actions are something you won’t read about much on this blog, it’s worth giving some thought to how the rules of corporation law intersect with chancery matters, particularly estates and divorce. I can conjure up a fair number of scenarios where the holding in this case could apply.
- “Standing is a jurisdictional issue” that may jump up and bite you at any point in the litigation. Even the judge may raise it.
How Others See Us
March 9, 2018 § Leave a comment
Message I received recently from a County Court Judge in a far-flung corner of Mississippi:
We were overbooked this morning and I had to borrow a chancery courtroom. As soon as I walked over the threshold, my rules of evidence spontaneously burst into flames. What gives?!?
Who can argue with that? It’s happened to many a chancellor.
Alimony and Loss of Income
March 7, 2018 § Leave a comment
When Charles and Lajuana Easterling were divorced in 2013, the judgment incorporated their property-settlement agreement under which Charles agreed to pay Lajuana $2,500 a month in periodic alimony. He also agreed to pay the monthly note on the former marital residence, which Lajuana continued to occupy.
At the time of the divorce Charles worked offshore as a tool pusher. He later remarried and had two stepchildren and an adopted child by his second wife.
In 2015, Charles’s employment was terminated for reasons beyond his control. His efforts to file other employment in the oil industry were unsuccessful. He filed a petition for modification asking the court to eliminate the alimony obligation, and there was a temporary agreement reducing his alimony to $600 a month. He quit making the mortgage payment, forcing Lajuana to pay it herself.
At the time of the final hearing in May, 2016, Charles still reportedly had no income. He did have $400,000 in a securities account, an annuity, real property, vehicles, and other assets. He claimed living expenses of $7,574.56 a month. He said that he made up the deficit by increasing credit-card debt.
Following a hearing, the chancellor reduced Charles’s alimony obligation to $1,500 per month. Charles filed a motion for rehearing charging that the court should have terminated, not reduced, alimony. The chancellor denied the motion and Charles appealed.
In Easterling v. Easterling, a February 20, 2018, decision, the COA appealed. Judge Griffis wrote for a unanimous court:
¶11. Here, the chancellor’s final judgment found that Charles’s “decrease in income from his loss of employment was not anticipated at the time of the divorce and is a material change in circumstances[, but] . . . the loss of employment does not justify a termination of alimony[.]” After which, the chancellor considered the Armstrong factors to determine the proper amount of alimony. See Holcombe, 813 So. 2d at 703-04 (¶12).
¶12. “Personal bills cannot be used as a factor to reduce support payments.” Hardin v. Grantham, 201 So. 3d 511, 515 (¶15) (Miss. Ct. App. 2016). Since the divorce, Charles has acquired a new home and land, and has remarried and adopted one child and has two stepchildren. The law is clear that the claim of the divorced wife under an alimony award on the ex-husband’s earnings takes precedence over that of a second wife. De Marco v. De Marco, 199 Miss. 165, 167, 24 So. 2d 358, 359 (1946). The obligations to the first wife also take precedence over any obligations the ex-husband may have as the result of children with his new wife. James v. James, 724 So. 2d 1098, 1104 (¶22) (Miss. Ct. App. 1998). As a result, Charles’s post-divorce personal bills and remarriage cannot be used as factors to reduce his support payments. See Hardin, 201 So. 3d at 515 (¶15).
¶13. Further, the chancellor considered the Armstrong factors and concluded that Charles had not missed any payments on his monthly financial obligations since the divorce. Despite having been fired and claiming that he was in financial jeopardy because of his alimony obligation, all of his debts were current and there was no risk of foreclosure or repossession at the time of the hearing. Charles argues that he was current on all of his debts only because he took on additional credit-card debt through cash advances in order to make the payments. However, “simply alleging, as does [Charles], that one is subsisting on borrowed funds does not show with the required particularity that he is unable to pay.” Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995).
¶14. At the time of trial, Charles held more than $400,000 in stocks and an annuity, along with real property, vehicles, and other assets. Here he argues that he will run out of money within four years if he is forced to pay $1,500 a month in alimony, $120 a month in mortgage payments— including retroactive payments on each—and his reported $7,574.56 in monthly expenses. If this were the case, at that rate without any other income, Charles would be rendered destitute regardless of the court-required support payments.
¶15. At the hearing, Charles could make his obligatory alimony payments to Lajuana, whose living expenses and needs have remained unchanged since the divorce. The supreme court has held:
[i]n property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached [an] agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts. Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997) (quoting Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990)).
¶16. “[T]he chancellor has substantial discretion in reaching a decision that [she] finds equitable and fair to both parties.” Seale v. Seale, 863 So. 2d 996, 999 (¶14) (Miss. Ct. App. 2004). The chancellor determined that Lajuana had been substantially dependent upon both her disability payments and the alimony payments from Charles since the divorce to meet her monthly living expenses. Her financial situation has not changed. As a result of Charles’s material change in circumstances, the chancellor concluded that a $1,000 reduction in his alimony obligation was warranted. We find the chancellor’s reduction in the amount of the alimony was neither manifest error nor an abuse of discretion. The chancellor’s judgment is affirmed.
It seems a harsh rule when viewed from the payer’s perspective, but the chancellor’s job is to find a solution that is “equitable and fair to both parties.” At ¶10, the court noted that, “When analyzing [the Armstrong] factors and ‘deciding whether to modify periodic alimony,’ chancellors should ‘compar[e] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.’ Steiner v. Steiner, 788 So. 2d 771, 776 (¶16)(Miss. 2001)(citations omitted).”
The only other thing to which I would call your attention is that there was “no record or written order” documenting the temporary proceeding, per ¶4. That’s just asking for trouble. Here the parties agreed to what had transpired, but absent an agreement it could have been dicey, particularly for Charles, who had reduced his alimony and quit paying the mortgage note. Had Lajuana denied any agreement, Charles might have a big arrearage judgment and may have had his modification case bounced for unclean hands. Make sure you get an order; better yet, make a record and get an order entered.
Trial Factors aka “Checklists”
March 6, 2018 § 1 Comment
The MSSC threw down the gauntlet in 1983 in Albright v. Albright, mandating that trial judges must make findings of fact as to certain specific factors when making an award of child custody.
Since then, the number of factor-driven cases has multiplied. There are 13 now, by my count.
I call it “Trial by checklist” because you can reduce every list of factors to a convenient checklist that you can use at trial. I suggest you copy these checklists and have them handy in your trial materials. Build the outline of your client’s case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that, because failure to make findings with respect to the applicable factors is cause for remand — an expensive do-over. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
I try to remind folks twice a year about the importance of using checklists in making your cases.
Can Supersedeas Stay a Child-Support Order?
March 5, 2018 § Leave a comment
Kasey Hamp sued Bernardrick McKinney through DHS for paternity and child support. McKinney, a professional NFL player, was adjudged to be the father of Hamp’s child and was ordered to pay child support. Later, after McKinney received a signing bonus and increased income, Hamp filed for modification.
Following a hearing, the chancellor ordered an increase in child support and a lump-sum back-payment. McKinney appealed and posted a supersedeas bond. On advice of counsel, he continued paying the pre-modification amount of child support and Hamp filed a contempt action. In his defense, McKinney asserted the supersedeas bond. The chancellor found that the bond was not effective to stay the contempt proceeding because: (a) the ongoing child-support obligation was not a money judgment as provided in MRAP 8(a); and (b) McKinney’s bond was for $28,434.73, which the judge found to be some $8,000 less than the rule’s 125% requirement. McKinney appealed.
On the issue whether a supersedeas bond stays an ongoing obligation to pay child support, the MSSC held that it does not in the case of McKinney v. Hamp decided February 8, 2018. Justice Maxwell wrote for the majority:
¶37. This Court has held that “[t]he amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal.” In re Estate of Taylor, 539 So. 2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved, execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey, 219 Miss. 720, 723, 69 So. 2d 844, 844-45 (1954).
¶38. In a judicial-performance case, this Court has made very clear that a supersedeas bond stays execution of a child-support-modification order. Miss. Comm’n on Judicial Performance v. Littlejohn, 172 So. 3d 1157, 1160 (Miss. 2015). Indeed, this Court found a chancellor abused his power and committed misconduct by holding a parent in contempt for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor was suspended without payor disregarding “the clear wording” of Rule 8(a) and this Court’s application of it in Lindsey. Littlejohn, 172 So. 3d at 1160, 1163.
¶39. There is, however, a significant distinction between Littlejohn and this case. That distinction is the difference in the type of child-support payments appealed. In Littlejohn, a child-support order was modified and the father was required to pay $15,000 for an automobile for his child and $1,750 in attorney’s fees—together, a definitive money judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule 8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a definitive money judgment. And this Court has never squarely addressed whether prospective, monthly, child-support obligations can be stayed by a supersedeas bond under
Rule 8(a).
¶40. This Court has, however, recognized the need for continued, monthly, child-support payments to provide support for the child during the pendency of an appeal. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960). In Petersen, the chancellor entered a decree awarding monthly, child-support payments but stated that such payments “should remain in effect pending the appeal with supersedeas . . . .” Petersen, 238 Miss. at 198-99, 118 So. 2d at 304. And this Court held the chancellor was clearly justified in requiring continued, monthly, child-support payments pending an appeal with supersedeas. Id. But until today, this Court has not addressed whether prospective, monthly child-support
payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure 8(a) supersedeas bond. [Fn 8]
[Fn 8] The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord, 94-CA-00947-COA, 94-CA-01158-COA (Miss. Ct. App. Sep. 17, 1996).
¶41. Under Mississippi law, child-support payments become fixed and vested when the payments become due and unpaid. Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986). And as each payment comes due, it becomes “a judgment” against the noncustodial parent. Id. (citations omitted). Once fixed and vested, those judgments cannot be modified. See Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980); see also Cunliffe v. Swartzfager, 437 So. 2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive, one-time, child-support payments can be reduced to money judgments, a Rule 8(a) supersedeas bond can protect an appellee. But that is not necessarily the case for prospective,
monthly, child-support obligations. We find these are not money judgments and cannot be stayed by a Rule 8(a) supersedeas bond.
¶42. But this does not necessarily mean McKinney could not have sought a supersedeas bond. However, to do so, he would have had to make an application to the chancellor for a stay under Mississippi Rule of Appellate Procedure 8(b). [Fn omitted] And the chancellor, not the clerk, would have to decide whether to approve the bond, in light of an opposing party contesting the bond.
¶43. Turning to this case, we find the chancellor’s order modifying the monthly child support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to make the increased, monthly, child-support payments. But, as to the retroactive child-support award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas bond would adequately protect Hamp, and ultimately K.M., during the appeal.
¶44. We therefore affirm the chancellor’s ruling that prospective, monthly, child-support obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond. However, we reverse and render the chancellor’s decision that a Rule 8(a) supersedeas bond could not stay execution on the retroactive child support.
The court went on to reverse the chancellor’s contempt findings based on McKinney’s belief that he was protected by the supersedeas bond.
Some highlights:
- This case confirms what most chancellors have considered MRAP 8 to mean: that ongoing child support obligation is not stayed by supersedeas.
- This case also confirms what most chancellors have considered MRAP to mean vis a vis money judgments for a fixed sum: that a supersedeas bond will, indeed, stay judgment.
- If there is no agreement between the parties over the amount of the bond or whether it should be granted at all, the matter must be resolved by the chancellor. The clerk’s approval of a bond in that circumstance would be ineffective (See ¶42, above).
- Don’t put too much stock in the majority’s reversal of the contempt finding in this case. There were some particular facts that led to that conclusion (See ¶¶45-48). Justice Beam’s dissent (¶¶54-65) eloquently spells out the ample authority that casts considerable doubt on the defense of “I was Only Relying on my Attorney’s Advice.”
“Quote Unquote”
March 2, 2018 § 1 Comment
“Patience, n. A minor form of despair, disguised as a virtue.” — Ambrose Bierce
“There is, however, a limit at which forbearance ceases to be a virtue.” — Edmund Burke
“It is easy finding reasons why other folks should be patient.” — George Eliot
The Need for Findings
February 28, 2018 § 1 Comment
There’s not a whole lot of meat on the bone in the COA’s decision of November 7, 2017, in Sullivan v. Sullivan.
Janice and Wayne Sullivan agreed to a divorce on the ground of irreconcilable differences, with the chancellor to decide equitable distribution and alimony. Following a trial, the judge rendered an oral ruling, but there was no transcript of it. The final judgment did not reference the court’s ruling, and it did not mention the Ferguson or Armstrong factors.
On appeal the COA reversed and remanded for the court to analyze the proof through the Ferguson factors, and to clarify whether an alimony award was lump-sum or periodic.
It didn’t have to be that way. Here are some preventative steps you can take in a scenario such as this:
- If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
- If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
- If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
- Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”
Visitation Behind Bars
February 27, 2018 § 1 Comment
Nolana Griffin, a school teacher, was convicted of having sexual relations with several of her teenaged students, and was sentenced to Parchman. After a couple of years, her husband, Chad, sued for divorce and, following a contested trial, he was granted both the divorce and custody of the parties’ four daughters, one of whom had Asperger’s Syndrome. The children ranged in age from 15 to 7. The chancellor also found that regular visitation with Nolana was not in the children’s best interest. The chancellor offered five bases for his decision:
- All of the visitation would have to occur at Nolana’s prison;
- The prison is 4 1/2 hours distant from the children’s residence;
- Any visit would require that all parties, including the children, would have to be searched before entering;
- The visitation area is open and may expose the children to violent offenders;
- The best interest of the children would not be served by exposing them to these conditions.
Nolana appealed.
In Griffin v. Griffin, a MSSC decision dated February 1, 2018, the court affirmed. Justice Maxwell for the unanimous court:
¶14. We have never addressed head-on the impact of a noncustodial parent’s incarceration on his or her right to visitation. The issue was raised but not reached in Christian v. Wheat. Christian, 876 So. 2d at 346. In dicta, however, we did note that “[j]urisdictions which have reached the question of visitation rights of incarcerated parents generally express that incarceration, alone, is not sufficient to preclude visitation.” Id. [Fn omitted] See also, e.g., Davis v. Davis, 648 N.Y.S.2d 742, 743 (N.Y. App. Div. 1996) (“It is generally presumed to be in a child’s best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate.”). Today, we follow those jurisdictions and hold that incarceration, in and of itself, is not sufficient to overcome the presumption that a noncustodial parent is entitled to visitation.
¶15. Applying this holding, we find no reversible error in the chancellor’s decision. Contrary to Nolana’s assertion, the chancellor did not base his visitation decision solely on the fact Nolana is incarcerated. Instead, with the “paramount concern” in mind, he found that, based on the circumstances, the presumption in favor of visitation had been overcome and that court-ordered, every-other-week visitation with Nolana was not in the children’s best interest. He supported his decision with substantial evidence that judge-mandated visitation may be physically and emotionally harmful to the girls. The chancellor was swayed by a variety of factors. One was the physical distance the girls would have to travel twice each month (eight to nine hours round trip). Others included the requirement of a pat-down physical search, the location of the jail visits (in a communal room where potentially violent offenders were also visiting family), the oldest daughter’s social disability (Asperger’s Syndrome), and the fact Nolana’s daughters had not seen their mother since her arrest and much less that she was even incarcerated.
¶16. We note the chancellor’s decision is in line with other courts that have denied prison visitation in similar circumstances. Recently, a New York family court—after emphasizing that the law presumes visitation is in the child’s best interest, even when the noncustodial parent is incarcerated—denied an incarcerated father visitation with his son with autism, a social disorder related to Asperger’s Syndrome. E.A. v. R.A., 56 N.Y.S.3d 815, 820 (N.Y. Fam. Ct. 2017). The court found the presumption in favor of visitation had been rebutted by evidence of social stress the prison visit may have on his son, the fact the child may be stripsearched, the four-hour drive, and that the son had not seen his father since his incarceration. Id. See also Davis, 628 N.Y.S.2d at 743 (affirming the family court’s decision to deny an incarcerated father visitation based on the “militating evidence” prison was three-and-a-half hours away and child had medical condition making it unwise for him to travel away from
home frequently).
¶17. In Louisiana, an incarcerated father was likewise denied visitation. Davis v. Davis, 494 So. 2d 1315, 1318 (1986) (La. Ct. App. 1986). The father had been sent to prison in Texas for sexually assaulting his children’s twelve-year-old babysitter. Like Nolana, he requested Saturday morning visitation, twice monthly, but was denied. On appeal, the Louisiana Court of Appeals agreed that bi-weekly visitation with their father “would prove traumatic for children of their tender years,” especially considering the distance to be traveled (as in this case, a four-and-a-half hour drive one way), the recentness of the conviction, the security measures the children would undergo, and the children’s relationship to their father’s victim. Id. Thus, the court could not “say that the trial court abused its great discretion in concluding that at this time the children’s best interests would not be served by allowing such visitation.” Id.
¶18. The Louisiana court, however, was quick to caution that it “d[id] not mean to imply that the father has forfeited his right of visitation.” Rather, it viewed the trial court’s ruling “more akin to a suspension of the father’s visitation privileges until such time as it would be easier for the children to cope with the strain inherent in this situation.” Id. “In denying visitation at this time, but allowing the father to correspond with the children,” the appellate court believed the “trial judge has attempted to provide a means for the father to re-establish a relationship with the children gradually.” Id. The hope was to work toward a situation “where limited visitation will prove acceptable.” Id.
¶19. The chancellor here similarly provided a means for Nolana to maintain her relationship with her daughters with the eventual goal being visitation. He granted Nolana substantial phone visitation. She was also to be kept informed by Chad of the goings-on in her children’s lives. And the chancellor encouraged Chad to allow his daughters to visit their mother if and when Chad determined it appropriate.
¶20. This Court has recognized “that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship.” Cox, 490 So. 2d at 870 (emphasis added). And based on the facts before him, that is what the chancellor tried to do. The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest. See Harrington, 648 So. 2d at 545. Therefore, the chancellor’s
decision is entitled to the “great deference” this Court typically gives chancellors when determining visitation. Newsom, 557 So. 2d at 515.
¶21. Because of this deference, we affirm the divorce decree, which included no court ordered visitation with Nolana.
The only rule that can be drawn from this is that every parent is presumptively entitled to visitation, and incarceration alone does not overcome that presumption. To limit visitation with a jailed parent, there must be facts, as here, that support a finding that the conditions of visitation are against the best interest of the children and warrant limitation or suspension of visitation. There can be no one-size-fits-all solution. Each case will depend on the conditions of incarceration, the procedures for visitation involving the children, distance and travel conditions, and the children’s specific needs.
If You Want it You Have to Ask for It
February 26, 2018 § 1 Comment
Aside from the fact that it illustrates what a forlorn and hapless task it can be to file and prosecute one’s own appeal, the COA’s decision in Elkins v. Elkins, handed down February 6, 2018, is a reminder that your pleadings must include ” … a short and plain statement of the relief to which he deems himself entitled …” and ” … a demand for judgment for the relief to which he deems himself entitled.” (MRCP 8(a)(1) and (2)).
Kimberlana Elkins, representing herself, appealed from a judgment of divorce that included an adjudication of contempt against her ex-husband, Robert. On a R59 motion, the trial judge had reduced the adjudicated contempt arrearage, and Kimberlana claimed on appeal that the reduction was error. Judge Barnes wrote for a unanimous court:
¶26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of $42,604.47. He further held that Robert failed to pay sums accruing from the order of contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually until paid in full. Robert filed a motion to reconsider the judgment, and the court determined that because Kimberlana had not requested temporary child support in her initial complaint for divorce filed in July 2010, the court did not have the authority to order such and the temporary order was void ab initio. Therefore, the judgment was modified, and the amount of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in arrearage, and decreasing the amount of arrearage owed.
¶27. “Child support may not be awarded unless it is requested in the pleadings, tried by consent, or the court notifies the parties that the issue will be addressed.” Deborah H. Bell, Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted in its order, Kimberlana’s complaint did not contain any plea for child support or maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery court grant her a divorce based on irreconcilable differences and additionally stated: “If mistaken in the relief prayed, [she] prays for such further general relief and equitable relief to which she is entitled to receive.” Furthermore, the record reflects that Robert was not provided an opportunity to object to the chancellor’s award of temporary support, as he was not present at the hearing. A month after the order was entered, Robert filed a motion to set aside the temporary order, claiming that he was not notified of the proceedings. In Massey v. Huggins, 799 So. 2d 902, 910-11 (¶¶33-34) (Miss. Ct. App. 2001), we reversed a chancery court’s award of child support, as the appellant “was not provided notice that she ‘might be required to defend a claim of child support’ nor was there a ‘suggestion in the record that support payments from [the appellant] were even being contemplated by the court on its own or asked for by’ [the appellee].” (Quoting Morris v. Morris, 359 So. 2d 1138, 1139 (Miss. 1978); but cf. Lee v. Stewart, 724 So. 2d 1093, 1095 (¶4) (Miss. Ct. App. 1998) (Although child support was not requested in the pleadings, the award of child support was affirmed, as the record indicated the father did not object to the issue at trial, “but instead elected to argue on its merits”; thus, “th[e] issue was tried with [his] implied consent.”).
¶28. We find no error in the chancery court’s findings, as child support was not included in the pleading, and there was no evidence that the issue was tried by consent.
In simple terms: Robert could not be held liable for sums that he never had notice to defend against. That’s the due-process side of the coin. And I agree in this case that the chancellor could not go back and create a retroactive obligation absent a prayer for that relief and an opportunity to defend.
To change the facts slightly, I wonder whether a claim for child custody, standing alone, is not enough to support a claim for the support and maintenance that would be in the best interest of and for the benefit of the child. Say in a divorce complaint, all that is prayed for is custody; there is no prayer for child support. May the chancellor, over objection, award child support, medical support, and maintenance? I think MCA 93-5-23 authorizes it. See also Steen v. Steen, 641 So.2d 1167, 1171 (Miss. 1994); Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1990).
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