The Better Chancery Practice Blog

Let us today depart from our customary annual April Fool’s Day practical jokes, and instead focus our attention on that Everyman of the present era – the Fool. This is, after all, his (or her) day.

The information age is a paradisiacal era for Fools, what with social media, faux journalism, opinion outlets, and, yes, I daresay – blogs – that are fabulously fertile ground for Fools to grow and disseminate their fecund Foolishness.

Fools are in the news headlines daily. It’s the heyday of Foolishness and folly.

The birthmark of a Fool is lack of good sense and judgment. It’s a topic we’ve discussed here before.

On this their own special day, then, let’s ponder what wiser men have said of them:

“The trouble ain’t that there is too many Fools, but that the lightning ain’t distributed right”  —  Mark Twain

“A Fool always finds a greater Fool to admire him”  —  Nicolas Boileau-Despréaux

“I have great faith in Fools — self-confidence my friends will call it”  —  Edgar Allen Poe

“A man may be a Fool and not know it, but not if he is married”  —  H.L. Mencken

“A Fool must now and then be right by chance”  —  William Cowper

“A Fool sees not the same tree that a wise man sees”  —  William Blake

“For, as blushing will sometimes make a whore pass for a virtuous woman, so modesty may make a Fool seem a man of sense”  —  Alexander Pope

“A prosperous Fool is a grievous burden”  —  Aeschylus

“Even a Fool, when he holdeth his peace, is counted wise”  —  Proverbs, 17:28.

“The greatest men may ask a Foolish question, now and then”  —  John Wolcot

There is actually a patron saint of Fools. Saint Simeon, the Holy Fool, a sixth-century monk, is revered as the patron saint of “holy fools and puppeteers.” Holy Fools, as I understand it, are those who are “Fools for Christ’s sake” (1 Cor. 4:10), rejecting riches and other worldly things for spiritual pursuits. I am not here to judge, but Simeon’s activities seem to be of the more outré variety: dragging a dead dog through the gate of a city, inciting schoolchildren to call him crazy; pretending to have a limp, and other times jumping around; dragging himself along on his buttocks; tripping people walking by; baying and staring at the new moon; thrashing about; extinguishing lights in church and throwing nuts at women; overturning the tables of pastry chefs; and doing other similar capers that got him insulted, beaten, and abused, all of which he endured with good patience. By today’s foolish standards, those kind of stunts seem more mildly eccentric than foolish, but, hey, I guess that’s what made him a holy Fool as opposed to a wholly Fool.

Oh, and I still don’t understand what puppeteers did to be dragged into this discussion.

While we’re on the subject of saints, I should mention that April 1 is the feast day of St. Hugh of Grenoble, per the Catholic calendar. Although he lived in the eleventh century, he sounds like the kind of guy who faced down some of the same kinds of foolishness that nettle us today. This from a Catholic web site:

Hugh, who served as a bishop in France for 52 years, had his work cut out for him from the start. Corruption seemed to loom in every direction: the buying and selling of Church offices, violations of clerical celibacy, lay control of Church property, religious indifference and/or ignorance. After serving as bishop for two years, he’d had his fill. He tried disappearing to a monastery, but the pope called him back to continue the work of reform.

That just goes to show that, when it comes to Fools and foolishness, the passage of centuries does not appear to have any significantly remedial effect. Jonathan Swift spoke in 1726 of a Fool’s Folly in Gulliver’s Travels:

“He had been eight years upon a project for extracting sunbeams out of cucumbers, which were to be put in phials hermetically sealed, and let out to warm the air in raw, inclement summers.”

Come to think of it, that sounds suspiciously like the prospectus for a 2015 Silicon Valley IPO offering that would likely attract billions from investors.

Which brings to mind the old adage, “A Fool and his money are soon parted.”

Have a happy and prosperous April Fool’s Day.

Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.

It can cut both ways, though.

In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.

The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.

Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:

¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.

However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).

¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).

¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.

¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:

[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.

You can take away at some points:

• Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
• The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
• The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
• Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
• But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
• Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.