The Joint Legal Custody Mirage
October 18, 2016 § Leave a comment
One of the most effective ways to help ease your client into an agreement package that includes ceding physical custody to the other party is to sell the concept of joint legal custody.
What’s not to like? Joint legal custody, as defined in MCA 93-5-24(5)(e), requires that the parents or parties …
” … share the decision-making rights, responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.”
That sounds pretty straightforward. It sounds like when the parties share joint legal custody, there will be a process of shared decision-making and authority.
That’s the concept that brought Edwin Clyde Neely to the COA. A Special Chancellor had found him in contempt of a divorce judgment for not reimbursing his ex-wife, Lisa, for medical and college expenses incurred for the children. Edwin had defended on the basis that he had not been consulted on certain expenses, including a car, a laptop, and an off-campus apartment, despite the fact that the parties had joint legal custody. The chancellor swept past that argument, and Edwin appealed.
In the case of Neely v. Neely, decided October 11, 2016, the COA affirmed. Judge Greenlee wrote for a near-unanimous court, with the now-customary one judge “concurs in part and in the result without separate written opinion,” or the like. Here is what Judge Greenlee said on the point:
¶12. Edwin argues that Lisa’s refusal to involve him in the decision-making process on major expenses violates an implicit duty of sharing joint legal custody. In Laird, this Court affirmed the chancellor’s refusal to order the noncustodial parent to reimburse the custodial parent for various expenses incurred on behalf of the child, including clothing, school supplies, and a bicycle. Laird, 788 So. 2d at 851 (¶14). In that case, the original decree required consultation and mutual agreement between the parties prior to incurring expenses for education and similarly important matters. Id. The parties did not communicate concerning the expenses, and many of the expenses were duplicated between the two households. Id.
¶13. Here, the Agreement between Lisa and Edwin does not explicitly require consultation and mutual agreement between the parties prior to incurring the expenses. With the exception of reasonable college expenses, each expense is divided equally between the two parties. The chancellor heard testimony concerning whether each expense was reasonable, and held in Edwin’s favor that he did not have to pay the entirety of the expense of his freshman daughter renting an apartment off-campus, even though the original decree provided that Edwin would be solely responsible for all reasonable college expenses. We cannot find that the chancellor abused his discretion in finding Edwin in contempt and ordering him to reimburse the qualified expenses of $14,073.92. [Emphasis added]
That first sentence of ¶13 is somewhat of a head-scratcher. MCA 93-5-24(5)(e) specifically “obligates” the parties to confer (or consult, if you prefer), in the very kind of decisions involved in this case, and to share as well in the decision-making authority. There would not need to be a specific provision to that effect in the PSA or judgment because the statute specifically imports that duty into it via its definition of the term “joint legal custody.” I do agree that the statute does not require “mutual agreement” before incurring the expense, and there was no such requirement between the parties in this case. There was, however, a statutory duty to confer in the decision-making leading up to the expenses, and a statutory duty to share in the decision-making authority.
So, in light of a decision like this, how do you advise your clients when drafting an agreement or when confronted with a client complaining that he or she was left out of the decision-making loop? I guess the best tactic on the front end is to spell out in specific language what the duties of each parent shall be, and do not rely on the language of the statute. Professor Bell points out at § 12.04[1][a] of Bell on Mississippi Family Law, 2d Ed., that the MSSC ” … characterized joint legal custody as approximating the authority of an intact nuclear family” (citing Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss. 1986)). That’s all well and good, but you’d best spell out just what that entails.
As for that chagrined client who was left out of the conferring and decision-making process, I don’t think the cases or the statutes point a clear direction. In many cases that come to trial, the mere fact that there was no conferring does not overcome the fact that the expenses were clearly necessary for the benefit of the child. I think you have to take it on a case-by-case basis, with the necessity for and the reasonableness of the expenses, with the parties’ relative financial situations, being the main considerations.
In this district, we will approve joint-legal-custody arrangements only where there is a tie-breaker provision. You can read about that at this link.
The Gift that Keeps on Giving
October 17, 2016 § Leave a comment
Is it habitual cruel and inhuman treatment (HCIT) to give a sexually transmitted disease to one’s spouse?
Becky Farris filed a complaint for divorce against her husband, Gene, on the ground of HCIT and, in the alternative, irreconcilable differences. In the course of the trial, Becky testified that she had contracted herpes from Gene. The chancellor granted a divorce on HCIT, and Gene appealed, claiming that it was error for the chancellor to grant a divorce on that ground.
In the case of Farris v. Farris, decided October 4, 2016, the COA affirmed the chancellor. Judge Wilson’s opinion sets out the pertinent facts and law. Here it is, quoted at length:
¶28. Gene argues that the chancellor erred by awarding Becky a divorce based on habitual cruel and inhuman treatment. Gene insists that the record is devoid of any evidence proving that Becky filed for divorce because she contracted herpes or that the disease made it impossible for her to continue in the marriage. He also argues that there is no evidence to corroborate Becky’s claim that he gave her herpes.
¶29. “Habitual cruel and inhuman treatment is conduct that either:(1)‘endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief,’ or (2) is so ‘unnatural and infamous’ as to render the marriage revolting to the non-offending spouse, making ‘it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.’” Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012) (quoting Mitchell v. Mitchell, 767 So. 2d 1037, 1041 (¶14) (Miss. Ct. App. 2000)). The party seeking a divorce must prove habitual cruel and inhuman treatment by a preponderance of the evidence. Richard v. Richard, 711 So. 2d 884, 888 (¶14) (Miss. 1998). “While the chancellor’s determinations of the events that preceded the divorce are findings of fact, [a] finding that . . . conduct rose to the level of habitual cruel and inhuman treatment as defined as a ground for divorce . . . is a determination of law, and is reversible where the chancellor has employed an erroneous legal standard.” Potts v. Potts, 700 So. 2d 321, 322 (Miss. 1997).
¶30. There is no published Mississippi case affirming a finding of habitual cruel and inhuman treatment based on exposure of one spouse to a sexually transmitted disease. In Moses v. Moses, 879 So. 2d 1043, 1048 (¶12) (Miss. Ct. App. 2004), this Court reversed the chancellor’s finding of habitual cruel and inhuman treatment based on a husband’s alleged transmission of herpes to his wife. We did so, however, because “[t]here was no credible evidence . . . that [the husband] transmitted to [the wife] any STD.” Id. Moreover, because the wife alleged that “she knowingly married [her husband] believing he infected her with herpes” prior to the marriage, she could not “later claim that such infection [was] grounds for habitual cruel and inhuman treatment.” Id. (emphasis added). In Buckley v. Buckley, 815 So. 2d 1260 (Miss. Ct. App. 2002), this Court held that “[t]he fact that one spouse causes another to contract an uncomfortable, embarrassing disease, which may affect the likelihood of that spouse again becoming married, must be included in the evaluations of fault and misconduct” for purposes of determining alimony. Id. at 1265 (¶28). In Buckley, the parties agreed to an irreconcilable differences divorce, so fault and misconduct were litigated only in the context of property distribution and alimony. See id. at 1261 (¶3).
¶31. A number of courts in other jurisdictions have held that exposing one’s spouse to an STD may be grounds for divorce. The Rhode Island Supreme Court held that “[i]t is difficult to imagine a worse or more insidious form of cruelty.” Wilson v. Wilson, 13 A. 102, 104 (R.I. 1888). The Iowa Supreme Court similarly held “that the communication by a husband of a venereal disease to his wife, knowingly, is good and sufficient cause for a divorce, and is cruelty of the most flagrant kind.” Holmes v. Holmes 170 N.W. 793, 794 (Iowa 1919). The Maryland Court of Appeals held that “if a spouse, although knowing he or she is afflicted with a venereal disease, yet continues to maintain sexual relations and communicates the disease to the other spouse, such action constitutes extreme cruelty.” Kline v. Kline, 16 A.2d 924, 925 (Md. 1940). And the Supreme Court of Pennsylvania was simply unable “to imagine a more direct and palpable case of cruelty to a wife by a husband.” McMahen v. McMahen, 40 A. 795, 797 (Pa. 1898). There are many similar decisions from other states. See, e.g., Holden v. Holden, 116 P.2d 1003, 1005 (Idaho 1941) (“If [the husband] knowingly communicated [gonorrhea] to [his wife], that would constitute cruelty.”); Carbajal v. Fernandez, 58 So. 581, 581 (La. 1912) (stating that “all the courts agree” that knowing transmission of an STD to a spouse constitutes cruel treatment”); Holthoefer v. Holthoefer, 11 N.W. 150, 150 (Mich. 1882) (stating that knowing transmission of an STD by a spouse constitutes “extreme cruelty” and grounds for divorce); Darling v. Darling, 167 S.W. 1166, 1166 (Mo. Ct. App. 1914) (holding that knowing communication of gonorrhea to a wife was grounds for divorce); Cook v. Cook, 32 N.J. Eq. 475 (N.J. Ct. Ch. 1880) (holding that knowing communication of an STD to a wife was “extreme cruelty” and grounds for divorce); Cadle v. Cadle, 191 S.W.2d 561, 561-62 (Tenn. Ct. App. 1945) (holding that communication of a venereal disease would constitute cruel and inhuman treatment). While the most recent of the above-cited cases is more than seventy years old, we do not believe that knowingly exposing one’s spouse to an STD is any less cruel today, and we agree that it may be a form of habitual cruel and inhuman treatment.
¶32. Becky testified that she contracted herpes from Gene during the course of their marriage and first learned that she had the disease only a few months before their separation. Gene never denied that he had herpes; he only said that he did not know whether he had the disease because he had never been tested. In fact, Gene admitted that his first wife told him that she had herpes. Despite this, Gene never told Becky that he might have herpes until she told him that she had contracted the disease. The chancellor found Gene’s “actions of such an egregious nature that . . . each and every time he engaged in unprotected sex with [Becky] he was committing a continuous systematic cruel act upon her.” Given Gene’s own admissions, we cannot say that the chancellor’s factual findings were clearly erroneous or that she erred in granting a divorce on this ground.
¶33. Gene argues that Becky’s allegation was not corroborated by medical evidence, but Gene’s own admissions are sufficient corroboration to support the chancellor’s findings. See Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005) (explaining that a plaintiff’s allegations of cruel and inhuman treatment must be supported by independent corroborating evidence, but the “testimony of the defendant” may be sufficient corroboration); Gatlin v. Gatlin, 234 So. 2d 634, 635 (Miss. 1970). Gene also argues that there was no “evidence . . . linking Becky’s alleged diagnosis of herpes with the separation of the parties.” However, the law only requires Becky to show that Gene’s conduct was “a proximate cause of harm to [her] health and physical well being”—not that it was “the actual cause of the separation.” Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986). There was sufficient evidence for the chancellor to find that Becky met this burden.
¶34. Credibility determinations are made by the chancellor, not this Court. See, e.g., Irle v. Foster, 175 So. 3d 1232, 1237-38 (¶23) (Miss. 2015); McNeese v. McNeese, 119 So. 3d
264, 275 (¶32) (Miss. 2013). As relevant to this issue, the chancellor obviously found Becky’s testimony more credible, and there was sufficient evidence to support the chancellor’s findings of fact and finding of habitual cruel and inhuman treatment. Therefore, we cannot say that the chancellor erred in granting her a divorce on that ground.
So, until the MSSC speaks to the contrary, it is the law in Mississippi that knowingly, or in this case at least negligently, passing an STD to one’s spouse does constitute HCIT. It’s remarkable to me that after nearly 200 years of Mississippi jurisprudence that issue has never made it to the appellate level until now.
Reprise: Checklisting
October 14, 2016 § Leave a comment
Reprise replays posts from the past that you may find useful today.
Checklisting
April 21, 2015 § 9 Comments
You old timers know of my fondness for what I refer to as “Checklists” — those lists of factors that apply in various cases in chancery court. Newcomers may not be acquainted with the concept, so I republish this list of checklists every now and then to spread the word. It’s a concept I’ve referred to as “Trial by Checklist.”
The idea is that the chancellor is required to address various factors in various types of cases. If you are not putting on evidence to support the judge’s findings of fact under each of those factors, then you are: (a) losing the case; and (b) failing in your duty to represent your client, as well as wasting the court’s time; and (c) committing malpractice.
Here they are:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
Doing an accounting in a probate matter.
My recommendation is that you keep each checklist, with citation of authorities, handy, either in a notebook or accessible in your computer where you can photocopy or print them out each time you have a case involving them. For instance, in a divorce case, you might need the checklists for child custody, child support, equitable distribution, and alimony. then, as you prepare, tailor your proof to make a record as to each factor. At trial, you can use each checklist as a template for presentation of your case.
In my courtroom, I keep a notebook on each side of the room with every checklist for lawyers to have handy in a pinch.
Bear in mind that if the judge does not have the proof to support her findings on the applicable factors, your case is in jeopardy on appeal — that is, if the judge somehow ruled in your favor in the first place.
The Pause that Refreshes
October 12, 2016 § Leave a comment
In a divorce case, your client Harold is testifying about the condition of the former marital residence when he returned home from work and discovered that Maude, his wife, had left him and taken many household items with her. Now, when you ask Harold to list the items taken, he draws a blank:
Harold: Well, I remember the fireplace logs and the stuffed squirrel lamp, but my memory’s kind of hazy about the rest.
“No problem,” you think, recalling that Harold told you he made a complete list later the evening of the day in question, after he had time to take stock of what was missing. You sift through the bales of paper on the courtroom table and find the dog-eared document. You snatch it up and hand it to him.
You: Here; look at this paper. Does that help you recall?
Counsel opposite: Objection. That document is not in evidence. Best Evidence Rule. Hearsay. Privileged. Unduly prejudicial. Surprise.
“Yikes,” you think. What did I do wrong?
When a witness is unable to recall, your first remedy is MRE 612. That rule provides that a witness may use a “writing, recording or object” to refresh his memory, if by referring to the item it refreshes his present ability to recall. But there is a proper way to do it:
- You have to establish that the witness is unable to recall.
- You must try to jog the witness’s memory before resorting to refreshing memory. In federal court, leading questions are permitted; I’m not so sure of authority in state court, but it seems that this would be “necessary to develop the witness’s testimony” for which leading is permitted per MRE 611(c).
- If the witness still can not recall, ask him whether there is anything to which he could refer to refresh his recollection.
- Hand the witness the item and ask him to study or read it silently. After he has had a chance to do so, ask him if he now has a recollection independent of the writing or other item. If yes, his recollection has been refreshed, and you may then question him as to that recollection. Take the object away and question him based on his newly-refreshed recollection. If you have gone through this and he still has no independent recollection, you have to proceed under MRE 803(5), as explained below.
Notice that no foundation for the document or thing has to be established, other than that the witness does not recall and needs to refer to a given object. The thing does not need to be admissible in evidence; however, counsel opposite may review the entire item that the witness referred to, and may use it in cross-examination and may demand that all or part of it be introduced into evidence.
Some older lawyers still (after 31 years) still insist that you have to lay a non-hearsay foundation for the document or thing, but that requirement went out the window when the MRE was adopted in September, 1985. If you run into this particular buzz-saw and have a puzzled-looking judge, simply refer the judge to the fifth paragraph of the Advisory Committee Notes (former known as “Comments”) to MRE 612, which offers a helpful explanation of the distinction.
Some lawyers confuse MRE 612 with the rule for Recorded Recollection, which is MRE 803(5), and is an exception to the hearsay rule. It does require that you lay a foundation. But remember, you don’t need to go to 803(5) if the witness’s recollection is refreshed by looking at the object.
If you’ve reached Step 4, above, and your witness still is stuck, here is how to avail yourself of MRE 803(5):
- If you establish that there is a record (i.e., memorandum, report, data compilation, electronically stored information, or the like) that pertains to a matter the witness once knew about but can not now recall well enough to testify fully and accurately, and
- The record was made or adopted by the witness at a time when the matter was fresh in his memory; and
- It accurately reflects the witness’s memory,
Then, the witness may testify from it and even read all or part into the record, but it may be received into evidence only if offered by the adverse party. The classic situation where we encounter this in chancery is a private detective who has notes she made during and shortly after surveillance and now, two years later, has no clear recollection of dates, times, and other details.
I hope this helps clear up some confusion on this point. I sometimes find myself squirming along with attorneys struggling to figure out how to help the witness over the hump in the face of objection on top of objection.
Inadequate Remedy at Law
October 11, 2016 § 1 Comment
After ten years had elapsed, during which multiple building permits expired, and deadlines were extended again and again, and Michael Gaffney still had not completed construction of a house, the City of Richland filed suit in Chancery Court for an injunction requiring him either to complete construction within a specific time, or, failing which, to demolish and remove the structure. The city also sought attorney’s fees.
There were several proceedings, in which Gaffney appeared pro se, that resulted in some progress, and further inspections, resulting in an order that the house be completed by a date certain. When Gaffney failed to do so, the chancellor found him in contempt and authorized the city to demolish the structure. The city was awarded $8,232.82 in attorney’s fees. Gaffney appealed.
Now, before we go any further, I have to say that if I had heard the case I would likely have done pretty much the same as the chancellor did here. Why not? Injunctive relief is appropriate in chancery. I am sure the pleadings said all of the proper things about irreparable injury, public interest, and inadequate remedy at law. I am sure that no one involved, either attorney or layperson, raised any legal issue or authority that might question the authority of the court to act. And act it did.
So, the case was affirmed, right? Well, no. The COA reversed. In Gaffney v. City of Richland, decided October 4, 2016, the court held that the city should have followed MCA 21-19-11(1), which requires the municipality’s governing authorities to conduct a hearing when a complaint is filed by a majority of residents within 400 feet of a property alleged to be unhealthy or unsafe. From that determination, appeal lies to Circuit Court, per MCA 11-51-75. Chancery Court is nowhere in that loop. Judge Lee, writing for the majority, expounded:
¶23. Although the chancery court’s jurisdiction encompasses relief sought through injunction, issuance of an injunction is an extraordinary relief requiring first a showing of “imminent threat of irreparable harm for which there is no adequate remedy at law.” Heidkamper v. Odom, 880 So. 2d 362, 365 (¶11) (Miss. Ct. App. 2004). When a statutory scheme exists concerning review of an agency or board’s decision, an adequate remedy at law exists, precluding the issuance of injunctive relief. A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563, 569 (¶22) (Miss. 2010).
This case highlights a reason why many chancellors, I included, are skeptical when we are called upon for injunctive relief. Too often, especially in the case of TRO’s, they are brought in haste with breathless claims of imminent disaster if immediate relief is not granted. Haste, as they say, makes waste. I’m not saying that is what happened here. But it is clear that the lawyers convinced the chancellor that there was no adequate remedy at law when, in actual fact, there certainly was.
Remember that most chancellors do not have a research army standing at the ready to parse through the legal threads of your pleadings. Judges rely on you and your representations. You can plant fatal error in your own record by sending the judge off on a tangent that a little legal research and diligence on your part would have avoided.
Standing to Pursue a Rule 60 Motion
October 10, 2016 § Leave a comment
We discussed here last week the case of Doe v. Smith, the adoption case in which an adoption judgment was set aside for fraud on the court, and which was affirmed by the MSSC. The fraud was the intentionally false statements in the Consent to the adoption and in the testimony of the natural mother, Katy, that she did not know who was the natural father of the child to be adopted.
One of the issues raised on appeal by Catherine, the adoptive mother, was that Stan, the natural father, had no standing to file a R60 motion assertng the fraud issue in the adoption for the reason that he was not a party to the adoption.
In its decision, rendered September 22, 2016, the court rejected Catherine’s argument. Justice Maxwell for the court:
¶20. Catherine is correct that Stan was not a party to Matthew’s adoption. Honing in on this fact, she argues that Rule 60(b)(1) relief from the adoption decree is unavailable to Stan because he was a nonparty. See In re Adoption of A.S.E.L., 111 So. 3d 1243, 1249-51 (Miss. Ct. App. 2013). However, Catherine is viewing Katy’s misdeeds as “fraud . . . of an adverse party”—the type of fraud discussed in that case. Id. But Katy’s deceptions and omissions were not mere frauds of an adverse party. Rather, the judge found they had caused a “fraud upon the court.” M.R.C.P. 60(b)(6). And Rule 60(b)(6) authorizes courts to hear “independent actions”—such as the one filed by Stan—to set aside a “judgment for fraud upon the court.” M.R.C.P. 60(b)(6).
¶21. Rule 60(b)(6) does not require that an independent action be labeled as such. Hester v. State, 749 So. 2d 1221, 1223-24 (¶ 12) (Miss. Ct. App. 1999) (citing Bankers Mortg. Co. v. United States, 423 F.2d 73, 77, 81 n.7 (5th Cir. 1970)). And, as federal treatment of a similar rule shows, “when the 60(b) relief is sought by an independent action, there is no time limit save laches on when the action may be brought.” Id. (quoting In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir. 1964)).
¶22. The independent-action principle has been applied by the court of appeals to a
nonparty’s complaint to set aside a judgement.[Fn 17] See In re Estate of Pearson, 25 So. 3d 392, 395 (¶ 14) (Miss. Ct. App. 2009). In Pearson, an unwed, natural father petitioned the chancery court to set aside the final judgment closing his minor daughter’s estate. The father did so because the natural mother fraudulently excluded him as an heir. Id. at 393 (¶ 3). The natural mother, in the petition to determine heirs, swore she was unaware of the natural father’s name and averred the natural father was deceased. Id. at 393 (¶ 2). As in Pearson, Stan, a nonparty, filed an action raising the natural mother’s falsities as a fraud upon the court. And while Stan did file his petition under the same cause number as Matthew’s adoption, he named new parties to the proceedings and issued numerous summons to each named party.
[Fn 17] Cf. Byrd v. Woods, 90 So. 3d 666, 671-72 (¶ 24) (Miss. Ct. App. 2012) (noting that Hester v. State “approved” independent actions under Rule 60(b)(6) in Mississippi).
¶23. But Catherine argues that Stan’s only basis for standing is under Mississippi Code
Section 93-17-5(3). And this would require the chancellor to make findings under
Mississippi Code Section 93-17-6(4) to determine whether Stan was entitled to notice and to be made a party under Section 93-17-5. Catherine is correct that these statutes previously have been used by unwed, putative fathers to enter an appearance and contest an adoption. But again, there is a distinction between “fraud . . . of an adverse party” and “fraud upon the court.” Stan was not trying to establish his right to notice or object to ongoing adoption proceedings. He was arguing to set aside a final adoption obtained through fraud. And when compelling circumstances exist, Rule 60(b)(6) authorizes trial judges to set aside judgments obtained by a fraud upon the court.
¶24. We find that Stan’s petition was an independent action under Rule 60(b)(6). And as an independent action, the chancellor had authority to rule on Stan’s petition based on fraud upon the court.
So there is a right of a non-party to bring an independent action under R60(b)(6) where “compelling circumstances exist.”
I don’t know about you, but I find it hard to wrap my mind around Catherine’s argument. Stan’s omission from the original action was a direct result of fraud that concealed his parenthood and, ergo, his necessity to be joined as a party, from the court. The fraud resulted in a proceeding in which he was not invited to participate, and which resulted in a judgment of which he had not notice. So, under Catherine’s theory, he now must be barred from filing a R60 motion because he did not participate as a party, even though that was due to fraud? That makes no sense to me.
“Quote Unquote”
October 7, 2016 § 1 Comment
“The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.” – Lord Acton
“I call that mind free, which jealously guards its intellectual rights and powers, which calls no man master, which does not content itself with a passive or hereditary faith, which opens itself to light whencesoever it may come, which receives new truth as an angel from heaven. I call that mind free, which sets no bounds to its love, which is not imprisoned in itself or in a sect, which recognizes in all human beings the image of God and the rights of his children, which delights in virtue and sympathizes with suffering wherever they are seen, which conquers pride, anger, and sloth, and offers itself up a willing victim to the cause of mankind.” – William Ellery Channing,
“What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, our army and our navy. These are not our reliance against tyranny All of those may be turned against us without making us weaker for the struggle. Our reliance is in the love of liberty which God has planted in us. Our defense is in the spirit which prizes liberty as the heritage of all men, in all lands everywhere. Destroy this spirit and you have planted the seeds of despotism at your own doors. Familiarize yourselves with the chains of bondage and you prepare your own limbs to wear them. Accustomed to trample on the rights of others, you have lost the genius of your own independence and become the fit subjects of the first cunning tyrant who rises among you.” – Abraham Lincoln
No Fraud, No Foul
October 6, 2016 § Leave a comment
A couple of days ago we discussed a case in which a natural mother falsely and fraudulently claimed not to know who was the father of her child, which led a chancellor to enter an adoption judgment that later had to be set aside for fraud on the court.
Fraud on the court was the issue in a recent COA case, but the result was different than that in the adoption case.
Ronald and Belinda Betts were divorced in 2011. Belinda later sued Ronald for contempt several times. In one of those proceedings, Ronald had omitted a debt on his financial statement, and the chancellor noted that such an omission “can amount to a fraud perpetrated on the court and contempt.
When Belinda filed a third contempt action against Ronald, he borrowed a page from the chancellor’s earlier admonition and claimed in defense that the divorce judgment entered the previous year should be set aside per R60(b)(6) because Belinda made a false representation to the court in her divorce-action financial statement by omitting her interest in some property she inherited jointly with her sister. Belinda countered that she did not know or believe the land to be her property at the time.
The chancellor overruled Ronald’s motion and found him in contempt for non-payment of amounts he was ordered to pay under the divorce judgment. Ronald appealed.
In Betts v. Betts, handed down September 13, 2006, the COA affirmed. Judge Griffis wrote for a unanimous court:
¶11. Ronald argues that Belinda’s failure to list the property on her Rule 8.05 financial statement constituted an intentional filing of a substantially false statement and fraud upon the court. Belinda contends that Ronald’s unclean hands bar him from relief.
¶12. Rule 60 provides in part:
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the
following reasons:
. . . .
(6) any other reason justifying relief from the judgment.
“Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted in
exceptional and compelling circumstances, such as for fraud upon the court.” Trim v. Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010).
¶13. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Id. at 477 (¶15). “[S]imply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. There must be a finding that the disclosure was intentional.” Finch, 137 So. 3d at 235 (¶23).
¶14. “[A] party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court.” Trim, 33 So. 3d at 478 (¶17). And “no time limit constrain[s] the chancellor’s ability to modify the divorce judgment to remedy the fraud on the court.” Id.
¶15. The following elements constituting intentional or fraudulent representation must be proven by clear and convincing evidence:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.
Id. at (¶19) (citing McCord v. Healthcare Recoveries Inc., 960 So. 2d 399, 406 (¶17) (Miss. 2007)).
¶16. The chancellor declined to set aside or modify the divorce decree after finding that Belinda did not intentionally mislead the court and that Ronald came to court with unclean hands after failing to disclose certain property rights on his Rule 8.05 financial statement. “[T]he trial court is best able to determine whether a fraud has been perpetrated upon it. As a result, the chancellor’s determination of the issue is entitled to great weight.” Tirouda v. State, 919 So. 2d 211, 216 (¶12) (Miss. Ct. App. 2005). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of fact.” Trim, 33 So. 3d at 479 (¶20).
¶17. The testimony from Belinda supports the chancellor’s conclusion that she did not know of her false representation to the court. She simply did not consider the property her own. She had not paid for the property, and she was not using the property for any purpose. The testimony showed that her mother currently or previously lived on the property, and Belinda considered it her parents’ land. Intentional or fraudulent representation requires that a representation be made, which the speaker knows to be false, with the intent that it should be acted on by the hearer. Fitch, 137 So. 3d at 235 (¶23).
¶18. Belinda’s conduct was not shown to be “the most egregious misconduct, . . . ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Trim, 33 So. 3d at 477 (¶15). And even though she failed to list the property in her Rule 8.05 financial statement, “simply failing to disclose essential facts to the proceedings to the adverse party or to the court does not rise to the level of fraud.” Finch, 137 So. 3d at 235 (¶23). “[A] party is not entitled to relief [under Rule 60(b)] simply because he is unhappy with a judgment.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013).
¶19. Furthermore, Ronald himself failed to list mineral rights in his possession on his Rule 8.05 financial statement, leading the chancellor to find that Ronald came to court with unclean hands. “Mississippi’s chancery courts are courts of equity, and under the clean[-]hands doctrine, anyone that comes before ‘a court of equity . . . must do equity as a condition of recovery.’” Dill v. Dill, 908 So. 2d 198, 202 (¶11) (Miss. Ct. App. 2005). “This doctrine, in effect, prevents a complainant from petitioning the court to modify an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Id. The chancellor noted: “Just as Belinda failed to disclose an asset at the time of their divorce, so did Ronald.”
¶20. This Court finds that the chancellor did not abuse his discretion in denying Ronald relief under Rule 60(b). As such, the substantial evidence supports the chancellor’s discretionary ruling as the fact-finder.
Before you wade off into the shark-infested waters of R60 on a raft of fraud, make sure it is stout enough to support your case.
Not every omission of evidence amounts to a fraud on the court. This case is a good recitation of the law on the point. You should file it away for future reference.
Attorney’s Fees in Contempt Actions
October 4, 2016 § Leave a comment
It’s pretty much a given that, if you are found to be in contempt of a court order, you will be assessed with the other side’s reasonable attorney’s fees.
The point was brought home again recently in the COA case of Dupree v. Pafford, decided September 6, 2016.
In that case, Stephanie Dupree had been found in contempt of court orders for discovery in a contempt/modification action, and for her denial of visitation. Unhappy with the trial court’s rulings, Stephanie appealed. Two of her contentions were (1) that there was no proof that the father of her child, Patrick, was unable to pay his attorney’s fees, and (2) that the court did not adequately address the reasonableness of the fees that were assessed. Judge Fair wrote for the majority:
¶8. Next, Stephanie contends that the chancellor erred in finding the fees to be reasonable. She makes two distinct arguments here, and the first is easily disposed of: Stephanie contends that the chancery court was required to find that Patrick was unable to pay his own attorney’s fees. This is simply not required when a finding of contempt has been made:
When a party is held in contempt for violating a valid judgment of the court,
attorney’s fees should be awarded to the party that has been forced to seek the
court’s enforcement of its own judgment. The award may be assessed against
the offending party without regard to the recipient’s inability to pay.
Caldwell v. Atwood, 179 So. 3d 1210, 1217 (¶26) (Miss. Ct. App. 2015) (citations and
internal quotation marks omitted).
¶9. Stephanie next contends that the chancellor failed to adequately determine the
reasonableness of the fees claimed by Patrick’s attorney. The record reflects that the
chancellor expressly found the fees to be reasonable. While Stephanie faults the chancellor for not going into detail, detailed findings are not required if the award of fees is, in fact, reasonable. West v. West, 88 So. 3d 735, 747 (¶¶57-58) (Miss. 2012). On that point, Stephanie offers nothing other than her assertion that many of the fees were “generated by totally needless litigation” resulting from Patrick’s motion for custody modification, which, according to Stephanie, delayed the hearing on the contempt issue and resulted in multiple contempt motions being filed.
¶10. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the
sound discretion of the trial court. Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal .” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (internal citation and quotation marks omitted). Stephanie has failed to show an abuse of discretion regarding the reasonableness of the attorney’s fee awards.
That’s pretty straightforward. As a practical matter, however, it may just be a lot of sound and fury signifying nothing, because the COA sent the case back to the trial court because the chancellor had found Patrick not to be in contempt despite a history of non-payment of child support. The COA held that Patrick’s history of non-payment and late payments should have resulted in a contempt adjudication. That will likely cost him something in attorney’s fees, which will offset — in whole or in part — the award against Stephanie.
A Tragic Fraud on the Court
October 3, 2016 § 1 Comment
It’s hard to imagine a legal proceeding more tragic and heart-wrenching than the setting aside of an adoption. Most chancellors go to extremes to ensure that there are no flaws in the proceeding that might jeopardize the finality of an adoption judgment.
In the recent MSSC case, Doe v. Smith, decided September 22, 2016, the chancellor entered an adoption judgment based on the natural mother’s statement in the Consent and in her sworn testimony that she was unaware of the natural father of her child, Matthew. Stan, the natural father, however, learned of the adoption and filed a R60(b)(6) motion to set the judgment aside for fraud. At the hearing on that motion, the natural mother, Katy, admitted on the witness stand that she had lied, the chancellor set aside the adoption judgment.The adoptive mother appealed. One of her grounds was that the chancellor erred in setting aside the judgment. Justice Maxwell, writing for a unanimous court, addressed the argument this way:
¶14. A fraud upon the court is an intentional misdeed that “vitiates a judgment” because “the court is misled and deceived” about the facts it relies upon when administering the law. Trim [v. Trim], 33 So. 3d [471,]at 477 (¶ 15) [(Miss. 2010)] (quoting Brown v. Wesson, 74 So. 831, 834 (Miss. 1917)). Rule 60(b)(6) gives judges broad authority to set aside judgments entered, resulting from such fraud. Trim, 33 So. 3d at 475 (¶ 7) (citing M.R.C.P. 60(b)(6) and Tirouda v. State, 919 So. 2d 211, 214 (Miss. Ct. App. 2005)). However, to qualify as “fraud upon the court,” there must be exceptional and compelling circumstances and the deceptive act(s) must be material and extreme. Not just any falsity or misstep, even if intentional, is enough for relief.
¶15. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” [Fn13] Wilson v. Johns-Manville Sales Corp., 873 F. 2d 869, 872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F. 2d 1332, 1338 (5th Cir. 1978)). Mere nondisclosure of pertinent facts to the court “does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim, 33 So. 3d at 477-78 (¶ 16) (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n.8 (5th Cir. 1980)). Furthermore, the fraud must be proved by clear and convincing evidence. Moore v. Jacobs, 752 So. 2d 1013, 1017 (Miss. 1999) (citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)).
[Fn 13] See also In re Guardianship of McClinton, 157 So. 3d 862, 870 (¶ 17) (Miss.
2015) (Rule 60(b)(6) is a “catch all” provision for exceptional and compelling
circumstances) and Roberts v. Lopez, 148 So. 3d 393, 399 (¶ 12) (Miss. Ct. App. 2014) (the substantial misrepresentation of facts on which a judgment is based constitutes a fraud on the court).
¶16. Here, the chancellor found Katy’s deceptive acts and omissions—which she admitted she knowingly made—met these high marks. Katy had filed a voluntary, sworn joinder and consent to Matthew’s adoption.[Fn 14] And in it, she represented she was unaware of Matthew’s biological father’s name, identity, or address. But under oath at the April 21, 2015, hearing, Katy admitted to lying about Matthew’s father’s identity in her consent. She also admitted she lied when testifying at Matthew’s adoption proceeding. She said she did so because she knew Stan would be a poor parent and caregiver.
[Fn 14] Under Mississippi Code Section 93-17-5, Katy was required to either provide her consent to the adoption or appear and contest it. Miss. Code Ann. § 93-17-5(1), (4) (Rev. 2013).
¶17. We have held that the effective administration of justice requires our chancellors have accurate financial information to distribute marital assets during divorce. See Trim, 33 So.3d at 477-78 (¶¶ 16, 17) (finding a party who filed a substantially false, statutorily required Rule 8.05 statement committed a fraud upon the court). So certainly, an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent [Fn 15] to an adoption undermines the effective administration of justice.
[Fn 15] See Miss. Code Ann. § 93-17-5(1), (4) (Rev, 2013).
¶18. The chancellor found that Katy knew who Matthew’s father was after the first
paternity test excluded her husband. And she withheld this information from the court and all parties involved. He held that Katy knowingly had misled the court and all parties through her testimony, affidavit, and nondisclosures regarding Matthew’s paternity.
¶19. And because the heart of Katy’s actions was designed to deceive the court, by lying about and omitting material facts to trick the court into granting a supposed uncontested adoption, the chancellor properly found that a fraud was committed upon his court. [Fn 16]
[Fn 16] The requirement that fraud, misrepresentation, or other misconduct be proved by clear and convincing evidence is moot here, since Katy admitted her fraud. See Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss. 1999).
There was nothing in the record to show that either the adoptive parents or their attorney knew of Katy’s false statements.
A few observations:
- Adoption proceedings underwent a change effective April 16, 2016. You need to familiarize yourself with those changes if you are going to handle any adoptions. This decision is under the old adoption procedure.
- The main thing to take away here is how easy it is for parties who are unencumbered by ethical considerations to lie when it suits them. As a lawyer you should be especially diligent and inquisitive when a natural mother claims not to know who was the father.
- This case underscores how ruinous a fraud on the court can be. Imagine the joy of the adoptive parents when they walked out of the courthouse with their new baby; and imagine their devastation when the child was taken away from them some nine moths later. That’s why lawyers should take extra care, as much as they can, to make sure that something like this does not happen.
A similar thing happened in my court. The mother signed a Consent stating that she did not know who was the natural father, and the adoption agency gave the child to the adoptive parents pending the adoption. Before the adoption could be presented, however, the natural father intervened and objected to the adoption. The adoptive parents conceded the inevitable and surrendered the child to the father.
Another issue raised on appeal was whether the natural father had standing to file a R60 motion in the case, since he was not a party. That’s a subject for another post.
