Joint Custody Outside of Divorce, Part Deux
November 15, 2017 § 1 Comment
Yesterday we visited the situation where the natural parents in a paternity suit were awarded joint custody of their child. It was deemed okay by the COA.
Today we consider whether the chancellor may award joint custody between paternal and maternal grandparents in a case where both are claiming custody due to unfitness of the natural parents. That’s what happened between Monica Darby (paternal) and Harold and Karron Combs (maternal).
The chancellor awarded the grandparents joint custody, and Monica appealed. The COA affirmed in Darby v. Combs on October 25, 2016. Monica filed a petition for cert, and the MSSC granted it.
On November 9, 2017, the MSSC affirmed the COA in Darby v. Combs. Justice Maxwell wrote for a 6-2 court, with Ishee not participating:
¶23. Chancellors have jurisdiction to make custody decisions. See Miss. Const. art. 6, § 159; see also Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 436 (1943). And their decisions must be made with an eye on the best interests and welfare of the child. Albright, 437 So. 2d at 1005; Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (extending the coverage of the Albright decision to all original custody decisions)). Here, the Court of Appeals correctly recognized this notion, explaining “[i]n a custody contest between third parties,where neither party has a superior right to custody of the child, the child’s best interests and welfare are the polestar consideration.” Darby, 2016 WL 6276610, at *7.
¶24. With Addie’s best interests in mind, and in light of his finding that Crystal and Andrew were unfit parents, the chancellor consulted Section 93-5-24(1)(e). This statute clearly permits third-party custody arrangements. Under Section 93-5-24(1)(e):
Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and
guidance for the child.
Miss. Code Ann. § 93-5-24. So, based on his finding of parental unfitness, the chancellor was statutorily empowered to fashion a third-party-custody award. Monica does not seriously contest the chancellor’s authority to grant third-party custody. What she argues is that the chancellor lacked authority to craft a third-party joint custody award.
¶25. As support, Monica latches on to the use of the word “person” and the phrase “any other person” in Section 93-5-24(1)(e)(i) and (ii). She insists this singular language makes clear that only one person or party may receive custody. So as she sees it, joint custody awards are not allowed between third parties under Section 93-5-24(1)(e)(i) and (ii). She suggests the definition of joint physical custody in Section 93-5-24(5)(c) supports her interpretation. [Fn omitted] We disagree.
¶26. First, it is obvious Subsection 93-5-24(5)(c) contemplates joint physical custody between “parents.” And here, the chancellor deemed Addie’s parents unfit for custody.
¶27. Second, Monica overlooks—and our statutory law instructs—that “[w]ords used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number . . . except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). And we see no contrary intention manifested within the statute.
¶28. Indeed, Section 93-5-24(5) concludes by explaining that “[a]n award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child and . . . the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities, and authority.” So, Section 93-5-24(5) suggests that joint physical and legal custody may be awarded to either parents or parties. Thus, we find no legal error in the chancellor’s statutory application.
¶29. As we recognized in Crider, the overarching consideration in Section 93-5-24 is that “[c]ustody shall be awarded as follows according to the best interests of the child.” Crider v. Crider, 904 So. 2d 142, 144 (Miss. 2005). And here, we cannot say the chancellor’s custody award was against Addie’s best interest.
II. Cooperation for Joint Custody
¶30. Monica next suggests the chancellor erred by awarding joint custody without making an express finding that the parties could cooperate as Addie’s joint custodians. We disagree. As discussed, the chancellor carefully walked through the Albright factors [Fn omitted] and crafted a
workable third-party custody arrangement.
¶31. Though joint custody between third parties may not typically be preferable, this is a difficult and, as the chancellor put it, “unusual” case. Facing the realities of obviously unfit parents and a neglected child, the chancellor did what he was duty bound to do—he consulted Section 95-5-24 and keyed in on the child’s best interest and welfare. [Fn omitted] The severity of Andrew’s drug problems, mental-health issues, and violent tendencies and Crystal’s extensive drug and alcohol abuse required the chancellor look elsewhere for custody arrangements.
¶32. When parents cannot agree on who should have primary custody of the children, this Court has suggested “it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible.” Waller v. Waller, 754 So. 2d 1181, 1184 (Miss. 2000) (emphasis added). [Fn omitted] The dissent basically stretches this language into a new affirmative requirement, essentially grafting a non-Albright factor onto the Albright test. And it concludes remand is necessary because the chancellor did not make an “express determination of whether the parties can cooperate in exercising joint custody.” We agree this consideration is certainly relevant. But by no means did Waller create a new mandate that chancellors make this “express determination,” or else a joint-custody award and Albright analysis will be legally lacking and require remand for additional findings. Rather, the Waller court, citing an American Law Report on joint-custody awards, suggests in a footnote that chancellors make joint custody awards where the parties are able to cooperate. Id. at 1184 n.1 (citations omitted).
¶33. Here, the chancellor rejected the GAL’s recommendations and carefully weighed the Albright factors and statutory law, deciding a joint-custody award was “the safest route” to protect Addie from potential violence. He had no qualms that Monica and the Combses could carry out this arrangement. If he had felt a joint-custody arrangement was unworkable, he would not have fashioned one. After review, we find no error in the chancellor’s joint custody award.
Afterthoughts:
- Joint custody keeps embracing more and more relationships. It goes well beyond the marital relationship based on yesterday’s and today’s reported decisions.
- I included the discussion about ability to cooperate because I think there’s been some confusion over whether it is a threshold requirement. To me it has been more of a disqualifying factor; i.e., where the evidence is clear that there can be no cooperation, I rule joint custody out. I do not require affirmative proof of cooperation, however, before awarding joint custody.
- One form of joint custody I am seeing — and strongly resisting — is joint custody (50-50) in PSA’s with no child support. I think joint custody is being used that way in many cases as a “business decision” with non-payment of child support as a bargaining chip. Joint custody, however, should be about providing the safest, most secure, most nurturing environment in the best interest of the child rather than a justification for no child support. When you link money with the joint custody arrangement, the sweet aroma changes to a foul odor. I don’t like it a bit. And, for you lawyers who push this idea, you are creating a new, potent avenue for “divorce blackmail” that can blow up in your face when you are on the opposite side of the issue.
Joint Custody Outside of Divorce
November 14, 2017 § 1 Comment
We all know that the chancellor may award joint physical custody in an irreconcilable-differences divorce, but what about when the natural parents have never been married to each other and they are before the court in a custody dispute? May the chancellor award joint custody?
That was one of the issues before the COA in the case of Roberts v. Eads, handed down October 10, 2017. In that case, Lauren Roberts sued Tyler Eads for custody and support of their son, Thomas. Tyler counterclaimed for custody, sole or joint. The chancellor granted them joint physical and legal custody, and Lauren appealed. The COA affirmed. Judge Carlton wrote for a unanimous court:
¶22. In addition to challenging the chancellor’s application of the Albright factors, Lauren claims that the chancellor’s award of joint physical custody violates Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), and Mississippi Code Annotated section 93-5-24(2) (Rev. 2013).
¶23. In Easley, the chancellor granted the parties an irreconcilable-differences divorce. Easley, 91 So. 3d at 640 (¶1). Section 93-5-24(2) provides that joint custody may be awarded in an irreconcilable-differences divorce “in the discretion of the court, upon application of both parents.” Following a trial in Easley, “the chancellor determined that joint physical custody was in the children’s best interest, but he erroneously concluded that the statute did not allow it to be awarded unless both parties expressly presented joint custody for consideration.” Easley, 91 So. 3d at 640 (¶1). The chancellor therefore awarded sole custody of the parties’ children to the father while granting the mother visitation. Id. On appeal, this Court concluded that, “after finding joint custody to be in the children’s best interest, the chancellor’s award of custody to one parent was an error of law.” Id. at (¶2). We therefore reversed the chancellor’s judgment and remanded the case so the chancellor could apply the proper legal standard. Id.
¶24. Upon review of the present case, we find no merit to Lauren’s claim that the chancellor’s award of joint physical custody violated either section 93-5-24(2) or our holding in Easley. As stated, section 93-5-24(2) provides a chancellor with the discretion to grant joint custody in an irreconcilable-differences divorce. However, the present case involves no such divorce since the parties were never married. We further note that section 93-5-24(3) provides a chancellor with the discretion to award joint custody “[i]n other cases . . . upon application of one or both parents.” As the record here reflects, in responding to Lauren’s custody petition, Tyler requested sole custody or, in the alternative, joint custody. Furthermore, after considering the Albright factors, the chancellor determined that joint legal and physical custody served Thomas’s best interest. [Fn omitted] As Easley recognized, a chancellor may grant joint custody, even where both parties do not present the issue, if such an arrangement
is in the child’s best interest. See Easley, 91 So. 3d at 640 (¶1). We therefore find no merit to Lauren’s assertion that the chancellor’s judgment violated Mississippi statutory law and caselaw.
¶25. The chancellor’s judgment is affirmed.
That’s something you might be able to put to good use.
Partition and Survivorship
November 13, 2017 § Leave a comment
Does the filing of a partition suit convert a joint tenancy with right of survivorship into a tenancy in common?
Richard Turner and Brenda Seymour purchased a home together in 1995. The deed recited that they held the property as “joint tenants with express right of survivorship, and not as tenants in common.”
In early 2011, Brenda filed a complaint to partite the property per MCA 11-21-3, which allows partition between joint tenants. Brenda died in November, 2012, and her estate was substituted as plaintiff. The chancellor ruled at a hearing in February, 2016, that the filing of the partition suit did not terminate the joint tenancy with right of survivorship, and that, therefore, Richard became sole owner of the property by survivorship after Brenda’s death. The Administrator of Brenda’s estate appealed.
In Seymour v. Turner, decided October 3, 2017, the COA affirmed. Judge Irving’s opinion is informative on joint tenancy and tenancy in common, and the effect a partition action has on them:
¶6. Joshua points out that four unities—time, title, interest, and possession—must be present in a joint tenancy, and if one of the four unities is eliminated or terminated, the joint tenancy defaults into a tenancy in common. He argues that when Brenda filed the lawsuit on February 3, 2011, the filing terminated the joint tenancy existing between the parties and rendered it a tenancy in common, because the unity of possession had been severed. “Unity of possession” means that each joint tenant must have an undivided share in the property. See Wilder v. Currie, 231 Miss. 461, 474, 95 So. 2d 563, 566 (1957). He contends that that was no longer the case upon the filing of the petition to partite, as once the partition suit was filed, Brenda was requesting either a division in kind or a division by sale. Consequently, he argues that the joint tenancy was transformed into a tenancy in common, which is not accompanied by a right of survivorship. Therefore, according to him, Brenda’s death did
nothing to deprive her estate of its ownership interest in the property.
¶7. We do not disagree with Joshua’s contention that “[t]here must be unity of title, time, interest[,] and possession in a joint tenancy.” Thornhill v. Chapman, 748 So. 2d 819, 828 (¶30) (Miss. Ct. App. 1999). The question here is, did the joint tenancy convert to a tenancy in common at the time that Brenda filed her suit to partite the property, vesting her interest in the property and eliminating the right-of-survivorship provision? We find that it did not. This Court has held:
[T]he distinguishing characteristic of a joint tenancy is the right of survivorship. By virtue of survivorship, the property descends outside of
probate from the deceased joint tenant to the surviving joint tenant. The requirements for the creation of a joint tenancy with right of survivorship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.” With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: [Carolyn] Jones owned the whole along
with [Anthony] Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Prior to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition hearing concerning their contributions to buying the house.
Jones [v. Graphia], 95 So. 3d at 753-54 (¶¶7-8) [(Miss. App. 2012)] (emphasis added) (footnote and citations omitted). Appropriately, the court in Jones ruled that upon the death of one joint tenant, the right of survivorship automatically transfers the whole property to the surviving joint tenant.
¶8. Joshua, in an attempt to distinguish Jones, argues that “[i]f Jones enjoyed ownership of the whole prior to the proceeding and lost this enjoyment when Graphia filed, then her death afterward would be at a time after she lost this enjoyment.” We disagree. The filing of Brenda’s complaint had no effect on the status of the property as a joint tenancy. At that point, no rights had been lost, but became merely subject to loss depending on the trial and the chancellor’s ultimate ruling. If Joshua’s analysis were the rule of law, all a party would have to do is file a complaint to partite to convert the property from a joint tenancy to a tenancy in common and defeat the right of survivorship, effectively rendering the court’s ultimate disposition of the case futile.
¶9. Although merely persuasive, the Michigan Supreme Court addressed this very issue in Jackson v. Estate of Green, 771 N.W.2d 675, 677 (Mich. 2009), as follows:
A party can sever a joint tenancy by compelling a partition. Until an order of partition has been entered, however, a partition has not been compelled and, thus, the joint tenancy has not been severed. See Anno: What acts by one or more of joint tenants will sever or terminate the tenancy . . . (explaining that “[i]t is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”).
Indeed, the universal rule in the United States is that a pending suit for partition does not survive the death of one of the joint tenants. See Heintz v. Hudkins, 824 S.W.2d 139, 142-143 (Mo. [Ct.] App. 1992), and cases cited therein. This rule is based on two related concepts: First, the theory of survivorship—that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants—and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final judgment.
For clarity, at the time that Brenda filed her complaint, the joint tenancy was still intact, and when she died, the property automatically transferred to Richard through the right of survivorship. There had been no final order issued at the time of her death, so the tenancy was never severed.
Nothing earth-shaking here. Filing a partition suit will not convert joint tenancy to tenancy in common, but a partition judgment will.
Report on the Contest
November 8, 2017 § 14 Comments
Some weeks ago I enlisted your participation in The Expert Institute’s Best Legal Blog contest.
In doing so I expected a few hundred favorable votes, taking into account that I have a few more than 860 followers. Imagine my surprise, then when it was called to my attention that the blog finished first in its category on the closing day, November 3, with 2187 votes, besting the Lawyers Rock blog by some 83 votes.
In fact, TBCPB finished second overall among all blogs in every category, second only to the Workplace, Data Management & Security Report, which received 2371 votes. You can see the vote totals at this link.
Thanks to each and every one who voted, and thanks to all of you who read this. I hope you continue to benefit from it. By the way, last year your votes added this blog to the ABA’s Best Legal Blogs list. So we are on a roll.
The Expert Institute says it is tallying votes and will notify the winners. I presume they are examining hanging chads and will make a definitive ruling soon.
In the meantime, I appreciate the vote of confidence. It helps keep me motivated.
Should Mississippi Have a Class-Action Rule? Your Comments are Invited
November 7, 2017 § 5 Comments
The MSSC has tasked the Supreme Court Advisory Committee on Civil Rules to study whether Mississippi should adopt a procedural rule allowing class actions. The committee is expected to recommend whether or not to do so, and, if the answer is positive, to propose how such a rule would operate.
The impetus for the referral comes from a motion filed with the court by Attorney Richard T, “Flip” Phillips to adopt Rule 23 of the Federal Rules of Civil Procedure.
To refresh your recollection, when the MRCP was adopted in 1982, Rule 23 was omitted. Up until then, equitable principles allowed consolidation of actions into something resembling class actions in chancery. The MRCP put an end to that, and some used Mississippi’s liberal joinder laws to fashion mass litigation that proved to be nightmarish in implementation. The MSSC and venue legislation put the kibosh on that, and so we are left with no tools for anything resembling class actions.
Both sides on the issue point out that Mississippi is the only state that does not have any form of state-court class action. Virginia allows class action in only extremely limited circumstances. All other states have rules allowing class actions.
The committee is gathering information and hopes to be in a position to make a recommendation by the spring of next year.
What do you think? Should Mississippi have a rule allowing class actions? Your comments are invited and will be shared with the advisory committee.
The Right to Confrontation
November 6, 2017 § Leave a comment
I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.
The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:
¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).
The Confrontation Clause of the Sixth Amendment
¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].
¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).
¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.
Article 3, Section 25 of the Mississippi Constitution
¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.
Harmless-Error Analysis
¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).
¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).
¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.
¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).
¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.
So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.
If your client is excluded over your objection, be prepared to explain how it prejudiced your client.
“Quote Unquote”
November 3, 2017 § Leave a comment
“Love is the motive, but justice is the instrument.” — Reinhold Niebuhr
“What doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?” — Micah 6:8
“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” — Frederick Douglass
November 1, 2017 § Leave a comment
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
The Better Chancery Practice Blog 