When Less is Not Better
January 24, 2017 § 1 Comment
You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).
This is what many of them look like to me:
The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.
I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).
What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.
Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:
- In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
- In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
- The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
- In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
- If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.
The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.
Appealing from a Special Master’s Ruling
January 23, 2017 § Leave a comment
The COA’s decision in In the Matter of J.W., decided January 3, 2017, is not likely to go down as a leading case in Mississippi jurisprudence, but for chancery practitioners in particular, it’s one you need to bear in mind.
To make a short story even shorter (the opinion is only three pages long), J.W. appealed from a finding made by a special master that he should be involuntarily committed to the custody of the Mississippi Department of Mental Health. The special master followed his findings with an “Order of Admittance after Hearing.” J.W. filed a R59 motion, but the COA does not tell us what the outcome of that was.
No matter. The COA dismissed the appeal for lack of jurisdiction because no chancellor ever adopted the special master’s findings in a court order. As the COA’s opinion by Judge Fair concludes:
¶5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson [v. Newson], 138 So. 3d [275], at 278 (¶11) [(Miss. Ct. App. 2014)].
The big deal here is that many districts around the state employ special masters routinely to handle child support and contempt cases per MCA 9-5-255. It’s an effective tool to free up courtroom time for more complex litigation, and to reduce waiting time for all kinds of hearings. When you get your findings and even a so-called “order” from your special master, however, it’s my opinion that you do not have either an enforceable judgment or a final, appealable judgment unless and until the chancellor has accepted the master’s report. That’s because of the language of MCA 9-5-255(8), which essentially tracks R53.
Another thing you need to keep in mind is that R53(g)(2) specifically directs that:
“The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto on the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may adopt the report in whole or in part or may receive further evidence or may recommit it with instructions.”
In Sims, et al. v. Mathis, handed down May 24, 2016, the COA held that it is the duty of the objecting party under R53 not only to file timely, specific objections, but also to set them for hearing and bring them before the court. In those special-master child-support cases, then, any objection needs to be filed within ten days of notice of the master’s findings, and the lawyer or party filing the objections needs to set the objections for hearing and bring the matter on for hearing. If that is not done, the court “shall accept the master’s findings of fact unless manifestly wrong.”
All of the foregoing applies not only to mental commitments and child-support proceedings, but also in every case in which a special master is appointed by the court. Mathis was a partition suit. Special masters are appointed in a wide range of chancery matters.
An Object Lesson in Deed Draftsmanship
January 18, 2017 § 1 Comment
When Cynthia and M.L. Culley conveyed a 26.7-acre parcel of land to J.E. Fowler in 1969, the deed included the following language:
LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this fate by grantors herein in favor of the City of Jackson, Mississippi.
A dispute arose between Suzannah McGowan and Stephen and Rowena Carmody, with both claiming ownership of the property through the Culleys. The special chancellor granted a partial summary judgment concluding that the deed was unambiguous and did not convey the excepted property described above. The Carmodys appealed.
In Carmody v. McGowan, decided January 3, 2017, the COA affirmed, with the opinion by Judge Fair:
¶2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.
3d 10, 17 (¶20) (Miss. 2012).
¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows . . . .” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:
LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.
It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:
The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.
Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.
¶4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy [Corp. v. Perkins], 558 So. 2d [349] at 352 [(Miss. 1990)]; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument . . . and are not to be invoked to contradict the plain language of the deed.”).
¶5. The Carmodys do not explicitly argue that the deed is ambiguous – indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for ascertaining [their] intent.” Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 418 N.E.2d 744, 747 (Ill. 1981).
¶6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.
¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.
I think that what the Carmodys unsuccessfully were trying to articulate was the argument that one may not on the one hand exclude something from the conveyance while at the same time making the warranty of the conveyance subject to the thing excluded. Either: (1) the easement is excluded (“Less and except …”), and therefore is not conveyed; or (2) the subject property in its entirety is conveyed, but subject to the easement. I think they were trying to say that the two provisions are irreconcilable. And, they noted, why would Fowler have wanted to hang on to ownership of a little chunk of the tract that was subject to an easement? If all of that is what they were getting at, I think they had a good point.
But, as Judge Fair points out, Carmody’s argument was more along the lines that the two provisions were merely redundant, which gets us nowhere, because an instrument may have many redundant provisions and not be ambiguous.
At any rate, more careful draftsmanship would have avoided this swivet. Either exclude the easement as the special chancellor found here, or expressly include it and make the conveyance subject to it. A little thought into how the property should be conveyed can go a long way toward avoiding problems for your client and/or successors in interest down the line.
It’s Alive!
January 17, 2017 § 5 Comments
“It’s alive! It’s alive! It’s alive!” — Mary Shelley, Frankenstein
Only last year I posed the question whether the venerable and seldom-used Bill of Discovery (BOD) in chancery were dead. That post dealt with the COA’s decision in Kuljis v. Winn-Dixie, Montgomery, LLC, in which the court affirmed a chancellor’s dismissal of a BOD filed by a plaintiff seeking information to determine whether a viable cause of action existed against the grocery-store chain. The judge ruled that the matter should be brought in circuit court and pursued via discovery there.
At the time I questioned whether the decision portended the death of the BOD, and I pointed to (former chancellor) Judge Fair’s dissent in its defense.
The issue arose again in a recent case decided January 10, 2017, Graham v. Franks, et al., and Judge Fair, writing this time for the majority, held that the BOD is, indeed a viable procedure in chancery. Here’s how he addressed it:
¶9. This appeal hinges on Franks’s assumption in his Rule 12(b)(6) motion that complaints for discovery and accounting do not state a cause of action in and of themselves, as Franks has never challenged any particular element of either claim. The dispositive question therefore appears to be whether a complaint that seeks only discovery or an accounting states a cause of action under Mississippi law.
¶10. It is beyond dispute that a complaint for an accounting is a valid cause of action under Mississippi law: “A Mississippi chancery court holds the authority to hear a case for an accounting.” Univ. Nursing Assocs. PLLC v. Phillips, 842 So. 2d 1270, 1275 (¶14) (Miss. 2003); Crowe v. Smith, 603 So. 2d 301, 307-08 (Miss. 1992). The remedy sought by an accounting is the accounting itself “and a judgment for the amount found due upon the accounting.” 1A C.J.S. Accounting § 54 (2005). And “the jurisdiction of a court of equity over matters of account rests upon three grounds[:] the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” Phillips, 842 So.2d at 1275 (¶14) (quoting Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927)). All of those appear to have been alleged in the Grahams’ complaint.
¶11. Next, we address the complaint for discovery in chancery, for the second time this year. [Fn 1] We are now presented with the issue of whether the pure discovery action – formerly a “bill of discovery” and now called a “complaint for discovery” – remains a viable and independent cause of action within chancery court jurisdiction. We hold that it does.
[Fn 1] See Kuljis v. Winn-Dixie Montgomery LLC, 2015-CA-00256-COA, 2016 WL 1203823 (Miss. Ct. App Mar. 29, 2016), reh’g denied (Aug. 23, 2016), cert. granted (Nov. 17, 2016).
¶12. In March of 1981 the Mississippi Rules of Civil Procedure were adopted by the Supreme Court of Mississippi, to become effective on January 1, 1982. Seven years later, in State Oil & Gas Board v. McGowan, 542 So. 2d 244 (Miss. 1989), the supreme court was presented with the question of whether the new rules had abolished the common law right to a “Bill of Discovery in Chancery.” It found that they had not:
The bill of discovery is one of the ancient bills used in equity practice. Griffith, Mississippi Chancery Practice, 1925, § 427 p. 422. The Board argues that the bill is no longer available as a discovery devise in Mississippi practice as it was abolished or rendered obsolete by the Mississippi Rules of Civil Procedure effective January 1, 1982. This Court disagrees with this premise.
Griffith, supra, addresses the Bill of Discovery:
But there is a distinct bill in chancery known, strictly speaking, as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. It had its origin out of the common law rule that no party in interest was a competent witness in any case; and it began at an early date to be allowed in the court of chancery in order to relieve against what otherwise would have resulted in a denial of justice when it happened that the facts or the documents establishing a right or materially aiding therein rested in the exclusive possession or control of the opposite party; and, originally its office was simply to aid a pending suit at law or one about to be brought, and the chancery part of the proceedings were usually deemed as concluded upon the coming in of the full answer making the
disclosures or producing the documents sought. In other words, the obtaining of the discovery was the sole object and end of the bill, no relief other than the discovery being prayed. It was therefore purely ancillary to a trial in some other case and ordinarily in some other forum.
Id. at pp. 422, 423.
Rule 82(a), M.R.C.P. makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.
It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State Ex Rel. Hale, 507 So. 2d 332, 337 n.4 (Miss. 1987). As such, the terminology of a “Bill of Discovery” has been rendered obsolete, and procedurally it is referred to as a “complaint.” However, the adoption of the rules affected procedure, not substance. The power and authority of the Chancery Court to grant the substantive relief of “discovery” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37. The need for this substantive remedy is evident by this lawsuit.
McGowan, 542 So. 2d at 248-49.
¶13. In addition to McGowan, only two Mississippi Supreme Court cases have addressed historical chancery court “bills” for relief in the context of the Mississippi Rules of Civil Procedure. In Leaf River Forest Products Inc. v. Deakle, 661 So. 2d 188 (Miss. 1995), the court relied heavily on McGowan, including the quotations above, in holding that the jurisdiction of a chancery court to grant a “bill of peace,” like a “bill of discovery,” had also survived enactment of the Rules of Civil Procedure. The more recent case of Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC, 864 So. 2d 939 (Miss. 2004), also relied on and quoted McGowan with approval.
¶14. While it is true that the complaint for discovery requires a meritorious underlying cause of action if it is to be the sole basis for equitable jurisdiction, [Fn 2] the chancellor observed that there were numerous ones here; the complaint was dismissed not because there was no underlying cause of action but because the complaint did not seek relief for one. The Supreme Court of Mississippi has recognized, however, that a complaint for discovery has discovery itself as the substantive relief sought – “the sole object and end of the bill, no relief other than the discovery being prayed.” McGowan, 542 So. 2d at 248. “Rule 82(a) [of the Mississippi Rules of Civil Procedure] makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.” Id. at 249.
[Fn 2] See Davis v. Lowry, 221 Miss. 283, 292, 72 So. 2d 679, 681 (1954); see also James W. Shelson, Mississippi Chancery Practice § 18:2 (2016).
¶15. As both discovery and accounting remain independent causes of action under Mississippi law, and Franks has never argued the insufficiency of the Grahams’ allegations on any specific element of either, we conclude that the trial court erred in granting the motion to dismiss for failure to state a claim upon which relief can be granted. We remand the case for further proceedings consistent with this opinion.
In the right case, you might find that the Complaint for Discovery (formerly BOD) is just what you need to get the job done, and the issue is now settled (unless and until the MSSC sees it differently) that it is a viable procedure. Remember: it requires that you have a “meritorious underlying cause of action” that sounds in equity. It’s not enough to file a PI case in chancery seeking damages and add some incidental accounting claim so as to get your discovery relief via BOD. That will most likely simply get you bounced over to circuit court.
My Friend Allen
January 13, 2017 § 6 Comments
A few of you are acquainted with my incomparable friend, Allen, who lives in North Mississippi, and has been regaling me with his humor almost daily for the past several years. Since all lawyers, judges, and other legal professionals are always in dire need of something to make us laugh, I thought I’d go ahead and introduce you to his wry sense of humor by sharing this sample with you …
My friend Allen got a little carried away with the holiday spirit last Saturday night and ordered a beer for everybody in the bar.
He was disappointed that a lot of people refused to drink from the same mug.
My friend Allen saw a piece on tv that cautioned people never to go grocery shopping when hungry.
He says it’s been 3 days now, there’s no food in his house, and he’s absolutely starving.
My friend Allen thinks reincarnation is making some sort of comeback.
My friend Allen says that people who stereotype other people are pretty much all alike.
My friend Allen’s neighbor made a date to meet his girlfriend at the gym, and then he didn’t show up.
It was his way of telling her that they weren’t working out.
My friend Allen says he is swearing off holiday leftovers this year.
He’s quitting cold turkey.
My friend Allen says that he’s never purchased life insurance because he wants everyone to be truly sad when he dies.
My friend Allen just found out that “Aaaaarrrrrrrgh!” is not a word.
He can’t say how frustrated he is.
My friend Allen went to the ear doctor last week because his hearing seemed to be slipping a bit. The doctor asked if Allen could describe any of the symptoms.
Allen replied, “Sure. Marge has blue hair and Homer needs to shave.”
My friend Allen’s 95-year-old mother has a hard time understanding modern times, and the other day she was shocked to find out that Allen had to pay 50 cents to pump up his tires.
“Why should you have to pay for air?” she asked.
“It’s inflation.” Allen answered.
Child Support and Private School Tuition
January 12, 2017 § 2 Comments
John (Jack) and Lori Bell were divorced in 2010. Their irreconcilable differences divorce judgment incorporated a PSA that included the following language:
As child support, Husband … shall pay $1,700 per month … which he shall pay … until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. The child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereafter.
The $1,700 agreed monthly child support exceeded the statutory child support guidelines.
The student loan is referenced in a subsequent paragraph, which explains that its proceeds were used in part to finance the household while the wife completed her degree at an Oklahoma law school.
In 2014, Jack filed for modification of child support based on the fact that he was laid off from his employment as a mechanical engineer and had to take a job in his mother’s country store, which later went out of business. His monthly income dropped from $3,077 at the time of the divorce to zero after the store closed. Jack had unilaterally reduced his child support to $625 a month based on his unemployment; he paid much of his arrearage after his mother’s store was sold. At the time the matter came on for hearing, Jack reported income of $2,575.35 a month.
Following a hearing, the special chancellor found Jack in contempt and ordered him to make certain remedial payments. The judge also found that there had been a material change in circumstances and reduced Jack’s child-support obligation to $865 per month, which was comprised of $365 in child support based on AGI, and an additional $500 in private school tuition. The chancellor explained that the private-school tuition was a deviation from the statutory guidelines, but was warranted based on his agreement to pay it in the PSA. Also, based on the modification, the judge ordered Jack to pay Lori a part of the balance due on the student loans.
Jack appealed, pointing out that the judge’s ruling resulted in his payment of child support greatly in excess of the guidelines. In the case of Bell v. Bell, handed down December 6, 2016, the COA affirmed on the point. Judge Barnes wrote for the majority:
¶9. Jack complains that the $500 per month in private-school tuition made his child-support obligation greater than 33.5% of his adjusted gross income, and with all support-related costs for Kinsley, his obligation was over 51% of his adjusted gross income. Moreover, he claims the finding by the chancellor at the modification hearing regarding the statutory deviation was insufficient. We disagree.
¶10. The chancellor found a material change in circumstance and granted Jack’s request for a downward modification in child support and other financial obligations. Jack’s payment decreased from $1,700 per month to $1,000 per month – both figures including consideration for student-loan debt as well as child support. [Fn omitted] The child-support figure of $865 constituted $365 in statutory child support (14% of his adjusted gross income of $2,575.35) [Fn omitted] and $500 for private-school tuition at Pillow Academy – the cost of tuition for one month.
¶11. There was no specific explanation in the agreement itself regarding what comprised the $1,700, but the parties explained their original and current intentions at the modification hearing. The original custody, support, and property-settlement agreement, signed by both parties, stated:
As child support, Husband . . . shall pay $1,700 per month, as child support, following the entry of divorce which he shall pay . . . thereafter until the child attains the age of twenty-one years, marries or becomes emancipated, whichever occurs first. This child support shall not be subject to reduction as long as Wife is paying on the $130,000 student loan referred to hereinafter.
Another provision in the agreement that related to how the parties arrived at the child-support figure was related to the student-loan debts:
Wife shall pay the following debts: all debts in her name alone including the $130,000 student loan. It is agreed that this student loan was used by both Husband and Wife for their college educations, and that Wife is agreeing to be responsible for paying all of it in consideration of Husband paying her the child support set out in paragraph 3 above.
At the modification hearing during examination by Lori’s counsel, Jack responded affirmatively that the two of them agreed to all of the terms and provisions of the agreement, waited sixty days, and were granted a divorce, and that Jack agreed to pay $1,700 per month in child support under the agreement. Jack further stated during questioning that they came up with the $1,700 figure “because of her student loans and everything else.” He admitted Pillow Academy tuition was also factored into the figure, which was approximately $450 to $500 per month at the time. Jack stated Kinsley had gone to Pillow Academy since “day one,” or six years at that time, and he wanted her to continue attending the school. Regarding the student loans, Jack admitted the $130,000 was “more than just a student loan”; it included some of their joint living expenses while Lori received her law degree from the University of Tulsa. Jack affirmed that he told the chancellor during the divorce
proceedings that he could comply with all of the obligations of the agreement, including the $1,700 in child support.
¶12. As Lori points out, chancellors are not required to make specific findings of fact supporting upward deviations in child support when the parties have previously, knowingly, and willfully obligated themselves to pay more than the guidelines require, such as through
a valid agreement. See Stigler v. Stigler, 48 So. 3d 547, 555 (¶29) (Miss. Ct. App. 2010). In divorce agreements, “parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Id. at 551 (¶9) (quoting Rogers v. Rogers, 919 So. 2d 184, 189 (¶19) (Miss. Ct. App. 2005)). Unlike Stigler, however, here the modification was not upward, and as Jack states, the parties did not agree to the terms of the modification. Stigler did not involve a child-support modification, but the initial agreement. Lori also cites to Short, 131 So. 3d at 1152 (¶10), where the supreme court denied downwardly modifying the husband’s child support obligation and enforced the original agreement because, while the obligation was “indeed high, [the husband] freely consented” to provide more support than the statutory guidelines recommended.
¶13. Jack cites to Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶9) (Miss. 2002), Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004), and Kilgore v. Fuller, 741 So. 2d 351, 354 (¶11) (Miss. Ct. App. 1999), for the proposition that private-school tuition is an ordinary expense to be included in the statutory amount of child support, and not to be calculated separately or in addition to the support award. Further, if an award exceeds the presumptive amount of the guidelines, the chancellor must make a specific finding as to why it is just or appropriate. However, neither Southerland nor Moses involved a modification award, and Kilgore was an increase in child support, not a decrease.
¶14. While all of the authority cited by the parties is somewhat distinguishable, we find the chancellor made a sufficient finding at the modification hearing that Jack must continue to pay private-school tuition. The finding was based upon Jack and Lori’s detailed testimony that Jack wanted Kinsley to continue her education at Pillow Academy, where she had been for six years. We do not agree with Jack that the sole basis of the chancellor’s ruling was the prior agreement. The chancellor took into account what the parties had agreed to before, as well as the way they had raised and educated the child since the divorce. The chancellor was able both to downwardly-modify Jack’s child support nearly by half, and
provide for private-school tuition within the obligation. We find no error with the modification.
¶15. The chancellor provided a sufficient explanation to deviate from the statutory guidelines of child support and include private-school tuition. This issue is without merit.
As with all child support cases, this one has a thicket of facts that significantly impacts the final outcome. The payment of private school tuition was linked to the student loans, which in turn affected the other amounts agreed to be paid, as well as the initial agreement to exceed the guidelines.
There is no discussion of the parties’ agreement in the PSA that the child support would not be modifiable so long as Lori paid the student loans. I don’t think such an agreement is binding on the court in a subsequent modification action. In East v. East, 493 So.2d 927 (Miss. 1986), the MSSC laid down the principle that the parties may not agree that periodic alimony may not later be modified*, and I see no reason why the same should not be even more applicable in child-support cases where the best interest of the child trumps every other consideration. The case of Tedford v. Dempsey, 437 So.2d 410, 418 (Miss. 1983) lends some weight to the argument. There may be a case directly on point. If you have a cite you can share it in a comment.
* This holding may have been impacted, more or less, by cases upholding so-called “hybrid” forms of alimony.
What you can take away is that child-support modification is not only fact-intensive, but its outcome is also largely shaped by the agreement or judgment that is sought to be modified.
Properly Pleading a Rule 59 Motion
January 10, 2017 § 1 Comment
A party wishes to ask the court for a new trial, and files the following within ten days of entry of the final judgment:
“Comes now the plaintiff, with respect to the court’s judgment rendered December 30, 2016, and moves the court for a new trial, pursuant to MRCP 59(a).”
Is that adequate?
Before we get to a response, I have to say that I have gotten motions almost identical to the language above, and no opposing party has ever raised an objection to its lack of specificity.
To me, it’s unquestionable that the motion is inadequate. That’s because of the specific language of R7(b), which states that “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Because R59(a) limits such a motion in chancery to ” … any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” at a minimum one or more of those reasons must be pled in order to meet the requirements of R7. Our case law recognizes also that the best practice is to specify all potential assignments of error in a motion for new trial, which indicates to me that the expectation is that some basis for the motion must be pled. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993).
Rehearings in equity prior to the MRCP were granted for reasons including: matters in the record that were arguably overlooked or not adequately addressed by the court; or the court misapplied or did not follow controlling case law; or there is newly-discovered evidence or “supervening facts” that would render the court’s decree incorrect or inequitable. Griffith, Mississippi Chancery Practice, §632, 2d Ed., 1950. If your motion fits into one of those categories, then you must plead it and support it with enough facts and authority to give the trial judge a basis to rule on it.
An illustration of how the failure to properly plead a R59 motion can open a critical line of attack to the opposing party is the case of Carter v. Carter, decided by the MSSC on December 1, 2016. In that case, the trial court entered its final custody judgment, and a R59 motion was filed by the unsuccessful party 5 days afterward, well within the 10-day time required by the rule. Sixty-two days later the same party filed a “Supplemental Motion” asserting new grounds not included in the original motion. The trial judge overruled the motion. On appeal, the other side claimed that the appeal was untimely, since it was based on the grounds raised in the “Supplemental Motion,” which was filed long after the ten days post-entry of judgment had elapsed. After examining the law on the point for around eight pages, the high court ruled that the objection had been waived because no one raised it at the trial level. Bullet dodged.
The interesting thing about Carter to me is that the entire hoorah over the original motion vis a vis the “Supplemental Motion” is that it presupposes that grounds must be pled in the R59 motion. There would have been no argument about it at all if the language above were all that were required.
In the great majority of reported R59 case that I have looked at, the courts refer to the bases asserted by the movant at the trial level.
My advice:
- Raise every claim of error you can think of in your R59 motion (although failure to do so may not be fatal as to some assignments of error, as you will discover when you read the Kiddy case);
- Include some of that Griffith language in your motion, as applicable (if nothing else, it may impress someone that you are a scholar); and
- If the other side files an inadequately pled motion or attempts to raise unpled issues at hearing, by all means object and preserve your record.
An Attempted Paternal Disappearance
January 9, 2017 § Leave a comment
Danny Hicks fathered a child by Jakeida Carter in January, 2007. In October of that year, Danny agreed to be listed as the father of the child, Janiyah, on her birth certificate. Around one year later, Danny entered into a stipulated agreement with DHS admitting paternity and agreeing to pay $202 a month in child support. The agreement was approved by court order. Things rocked gently on in domestic bliss thereafter. Janiyah called Danny “Daddy.” He was involved in Janiyah’s life, was active in her schooling, and, by all accounts was a good father. What could possibly go wrong?
Well, in 2015, a DNA test disclosed that Danny was not Janiyah’s biological father.
Danny filed a petition in chancery court to disestablish paternity and to terminate child support; he also wanted to be reimbursed $1,800 for the unhappy DNA results. Following a hearing, the chancellor responded no, no, and no, citing MCA 93-9-10(3)(c). Danny appealed.
The COA affirmed on December 6, 2016, in a four-page opinion by Judge Fair that was, in my opinion, lengthier than necessary. The words, “Affirmed per MCA 93-9-10(3)(c),” would have sufficed for me. You can read the COA’s opinion at this link.
As I pointed out in detail a previous post, in order to disestablish paternity since 2013, your client’s case must meet the criteria of the statute. In Danny’s case, he failed because, once a court approved a stipulation or acknowledgment of paternity, it was unassailable unless he had filed a petition to set it aside within the time specified in MCA 93-9-9. Danny waited ten years to petition, which is ‘way more than a tad too long.
Danny also argued that the chancellor committed reversible error by not seeing to it that Jakeida was sworn in before she testified. The COA pointed out that he waived that issue by not making a contemporaneous objection at trial.
Another, more substantial, point raised by Danny was that he should have been granted MRCP 60 relief because, he claimed, Jakeida committed fraud in claiming that he was the father. Other than his assertion, there was no evidence in the record of actual fraud. Moreover, the COA held, since he never filed a R60 motion with the trial court, he could not raise the issue for the first time on appeal.
Related note: In Finch v. Finch, 137 So.3d 227, 233 (Miss. 2014), the MSSC held that a chancellor may raise fraud on the court sua sponte in the course of a trial; however, there is no authority for the proposition that a chancellor is obligated to do so. It would have been improvident for the chancellor in this case to do so in the absence of clear and convincing evidence.
Before you go thundering off into court to vindicate a dad in a situation similar to Danny’s, be sure you familiarize yourself with MCA 93-9-10. You might save yourself and your client some grief … and money.
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