The Better Chancery Practice Blog

The MSSC is seeking comments on a proposal to amend MRCP 81 to clarify it, and moving its process provisions to R4.

You can access the proposed changes at this link.

These changes were recommended by the Conference of Chancery Judges in 2013, and then analyzed and studied by the MSSC’s Civil Rules Advisory Committee, which passed them on to the MSSC, which has been considering them since.

If you have any comments, pro or con, it will help the process if you will follow the instructions at the link. Deadline is April 1, 2016.

After the  legislature made it legal a couple of years ago to carry firearms in courthouses, except for courtrooms, some judges reacted by extending the protection of the courtroom out into external areas.

Now the legislature is responding with an amendment to HB 571, which has passed the House and is on the way to the Senate. It limits the definition of courtroom to ” … the actual room in which a judicial proceeding occurs, including any jury room, witness room, judge’s chamber, office housing the judge’s staff, or similar room” The law specifically allows firearms in ” … hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

If you agree this is good policy, then you may do nothing and see whether the Senate concurs.

If, however, you wonder what effect this will have on the safety of litigants involved in heated domestic matters who have to wait their turn in the hallways and corridors of our outdated and crowded courthouses, then you might consider contacting your Senator(s).

“This and no other is the root from which a tyrant springs; when he first appears he is a protector.”  —  Plato

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”  —  James Madison

“Tyranny is always better organized than freedom.”  —  Charles Péguy

Back in April, 2015, the MSSC amended the MRCP to add a new R5.1 imposing privacy protections for court filings in both paper- and electronic-filing districts. Consternation among bar, bench, and clerkdom ensued, and the high court suspended R5.1 pending further study. A committee was appointed to study the issue, and a new R5.1 was proposed, with application limited to electronic filings. On February 11, 2016, the new R5.1 went into effect. Here it is in its entirety:

Rule 5.1. Privacy Protection for Filings Made with the Court

Beginning July 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-5-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts — specifically, Sections 5 and 9 therein.

Even if MEC has not reached your particular district yet, if you file in an MEC county you will be bound by its rules. You can find them at this link.

Here are some highlights:

• You must not include in documents filed with the court, and must redact, any personal data identifiers.
• If Social Security numbers appear, only the last four digits may be shown.
• Only the initials of minor children, and not their full names, may be used.
• When stating a date of birth, only the year may be used.
• Only the last four digits of financial account numbers may be stated.
• No street addresses or apartment numbers may be stated; only city and state are listed.
• “The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The clerk will not review pleadings for compliance with these provisions.”
• Failure to comply can subject one to R11 sanctions.

It’s not just in the pleadings you draft that you will find sensitive information; it’s also in the documents you attach as exhibits to your pleadings, and in discovery filings. Almost every day, I have to admonish an attorney to redact Social Security numbers, birth dates, and financial account information. In fact, I directed the chancery clerk to keep a china marker — one of the best redaction tools I have found — in her desk for lawyers to use.

In my court, I extend the privacy protection practice to exhibits in evidence. I make the lawyers redact personal information from documents in evidence. Tax returns, financial documents, 8.05’s, pay stubs, credit card statements, and many other documents are chock-full of sensitive information that can be used for identity theft and other nefarious purposes.

You have a duty to your clients to protect them from being harmed by the information you put into the record. Now MRCP 5.1 makes that duty official.

Back in 2013, I posted about the MSSC’s decision in Memorial Hospital v. Proulx, which held that medical providers do not have a lien against the proceeds of a minor’s settlement. I think I aptly described that case as a “curveball for minor’s settlements.” You can revisit that post at this link.

Then last week, when I reprised “An Outline for Minor’s Settlements,” Randy Wallace picked it up, linked it, and did a nice piece on ERISA and subrogation that you should read and have in your minor’s settlement arsenal. You can access it at this link. His piece, which is well-researched and supported by authority, adds another dimension to the law of minor’s settlements, which on the surface appear simple, but can prove to be deceptively complex.

Last week I posted about the COA’s decision in Hughes v. Hughes, affirming the chancellor’s conclusion that the petitioner at trial had failed to prove cohabitation, mutual financial support, or de facto marriage so as to terminate his ex-wife’s periodic alimony.

Here are a few thoughts:

• Before you pocket the fee and set off on a quest to terminate or reduce alimony, be sure you are up to date on the law. Many of the old, moralistic rules that we older lawyers recall are long gone. Hughes includes a nice recap of the evolution of our present rules.
• Hughes illustrates just how difficult it can be to terminate alimony. Make sure you have proof that invokes every factor. These cases are extremely fact-intensive; they warrant careful and extensive discovery. You will lose if you file your pleadings, set the case for trial, and expect to win simply because the ex told someone that she and her new boyfriend have a romantic relationship.
• In Hughes, these facts were not enough to tote the load: Muriel and Darrell had a monogamous romantic relationship for more than four years; Darrell stayed overnight at Muriel’s home around once a week, and she occasionally spent the night at his; the two travelled together, and Muriel is a member of Darrell’s barbecue competition team; they travel together to Corvette car shows; they attend family events together; when travelling they stay in the same hotel room or in the barbecue trailer; Darrell gave Muriel valuable jewelry; Darrell stored a Corvette in Muriel’s garage; Darrell displayed one of his Corvettes in Kentucky with a plaque that read, “On loan from Darrell Hill & Muriel Hughes.”
• You just have to love the facts recited from Burrus at ¶24: Jolee spent more than $7,500 on her boyfriend’s criminal defense and paid for “his motel rooms while he was attempting to evade arrest; and she got a tattoo that said, “James’ girl.” You can’t make that kind of stuff up.

Reprise replays posts from the past that you might find useful today.

OUTLINE FOR MINOR’S SETTLEMENTS

July 16, 2010 § 8 Comments

Timothy and Mariel Hughes were divorced in 2008. Tim was ordered to pay Mariel $2,500 a month in periodic alimony.

Tim filed pleadings in 2011 to terminate alimony based on cohabitation and de facto marriage.

The case was set for a two-day trial in May, 2013, but could not be concluded in that time, so a date was set four months later for the third day. Then the original chancellor recused himself, and the case was reassigned to another chancellor. The third day of trial was scheduled for a date ten months after the first day. Following a hearing, the chancellor ruled that Tim had failed to prove either cohabitation or a de facto marriage. Tim appealed.

In Hughes v. Hughes, handed down February 16, 2016, the COA affirmed.

Judge Wilson’s opinion includes a helpful exposition on the law. Here’s how he addressed the law of cohabitation vis a vis alimony:

¶7. In an earlier time, a divorced woman risked forfeiture of her right to alimony payments if she engaged in a sexual relationship with another man subsequent to the divorce. See, e.g., Owen v. Gerity, 422 So. 2d 284, 287-88 (Miss. 1982); McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). Such forfeitures were based at least in part on “a moral judgment that a divorced woman should not engage in sexual relations.” Hammonds [v. Hammonds], 641 So. 2d [1211,] at 1216[(Miss. 1994)]; see also McHann, 383 So. 2d at 826 (“To hold otherwise would be to condone adultery . . . .”). However, in Hammonds, the Supreme Court limited this forfeiture doctrine to cases in which the alimony recipient is “cohabitating” with another and receiving support from, or providing support to, that person such that the financial need for alimony is reduced or eliminated. Hammonds, 641 So. 2d at 1217. Per Hammonds, the “moral aspects of the cohabitation” are no longer a basis for terminating alimony. Id. In a subsequent decision, the Court clarified that “proof of cohabitation creates a presumption that a material change in circumstances has occurred” and “shift[s] the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶7) (Miss. 1997).

¶8. In Scharwath, after Frank and Dianna divorced, Dianna commenced a relationship and cohabited with Jim Burns. Id. at (¶5). She allowed Burns to live in her home rent-free and provided him with a truck for use in his carpentry business. Id. at (¶6). In turn, Burns made improvements to the home, including re-flooring the basement and building a deck; he regularly mowed the yard; and he took on various other tasks and responsibilities around the house. Id. “He even moved furniture into the home[.]” Id. On these facts, the chancellor found that Dianna and Burns were cohabiting but denied Frank’s petition to modify alimony because he found that the cohabitation did not involve substantial mutual support. Id. at (¶5). On appeal, the Supreme Court held that the chancellor erred by relying on “the lack of direct financial evidence” of mutual support. Id. at (¶7). The Court observed that “parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed” if “only financial documentation” will suffice to support such a finding. Id. For this reason, the Court adopted—and remanded to the chancellor with instructions to apply—a “rule that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Id.

¶9. In a more recent case, Bill alleged that his ex-wife, Alicia, had forfeited her right to alimony by cohabiting with her boyfriend and enjoying his support. Coggins [v. Coggins] , 132 So. 3d [636,] at 643 (¶26) [(Miss. App. 2014)]. “Bill’s main evidence of cohabitation” was that the boyfriend’s car was often at Alicia’s house late at night and early in the morning. Id. at (¶28). Alicia and her boyfriend admitted that he stayed at her house one or two nights a week, but both denied that he lived there permanently. Id. The boyfriend had his own residence, kept no personal items at Alicia’s house, and did not contribute to her household financially or in kind. Id. The chancellor found that “Bill failed to prove Alicia cohabited with her boyfriend, so the mutual support presumption did not arise.” Id. at (¶27). The chancellor also found that even if Alicia and her boyfriend were deemed to be cohabiting, she had rebutted the presumption of mutual support. Id. Emphasizing that a “chancellor’s findings of fact about cohabitation, de facto marriage, and mutual support ‘are entitled to substantial deference when reviewed on appeal,’” we affirmed. Id. at (¶29) (quoting Pritchard v. Pritchard, 99 So. 3d 1174, 1177 (¶19) (Miss. Ct. App. 2012)).

¶10. In another recent case, we affirmed the denial of a motion to modify alimony on the following facts:

Sharon [(the ex-wife)] had a sexual relationship with Rooks, regularly stayed overnight weekends and several days during the week, and went on vacations with him and his family. Sharon and Rooks testified that Sharon did not receive any financial help from him to pay her bills or contribute to her everyday expenses. Sharon also maintained a separate residence and stated that she and Rooks had no plans to marry. Keith [(the ex-husband)] testified that he observed Sharon’s car at Rooks’s house several times a week. McMinn, 171 So. 3d at 518 (¶26). We agreed with the chancellor that a “relationship accompanied by sexual activity, alone, does not rise to the level necessary to forfeit alimony.” Id. Indeed, the Supreme Court made this point clear twenty years earlier in Hammonds. We reemphasized that the chancellor’s findings on these issues are entitled to “substantial deference when reviewed on appeal,” and we found nothing “manifestly wrong” in the chancellor’s determination that Keith failed to prove cohabitation or mutual support. Id. at (¶27) (quoting Coggins, 132 So. 3d at 643 (¶29)).

The court went on to analyze the proof, the court held that the chancellor properly declined to apply the presumption of mutual support.

As for the issue of de facto marriage, the court explained the law this way:

¶18. In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a “de facto marriage.” A de facto marriage may be proven in two ways. See Deborah H. Bell, Mississippi Family Law § 9.10[2] (2005). First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony. See Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999). Second, a de facto marriage can be found absent cohabitation if the alimony recipient and another person have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). We discuss these two theories of de facto marriage below.

A. Avoiding Remarriage

¶19. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony of $5,000 per month. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple told friends that they planned to marry “next year,” but then testified that they had no immediate plans to marry. Id. However, on cross-examination, Linda “admitted . . . that she and Anderson had not to go on excursions they [might] not otherwise be able to enjoy.” The chancellor did not clearly or manifestly err by concluding that the mere sharing of travel expenses with a boyfriend is not “mutual support” sufficient to warrant the termination of alimony. married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate homes, though Anderson did have a key to Linda’s home. Id. at 1133-34 (¶6). Anderson spent the night at Linda’s home only a few times a month, but he ate meals there regularly, ran errands for her, and did yard work and other household chores. Id. at 1134 (¶6). Linda and Anderson vacationed together and admitted to a sexual relationship. Id. They spent holidays together and bought gifts for each other, and Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothing and cosmetics from the department store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).

¶20. On appeal, we concluded that there was “substantial evidence in the record to support the chancellor’s finding that [Linda] and Anderson [had] provided ‘mutual support’ to one another.” Id. at 1136 (¶15). Anderson provided discounts and domestic services to Linda, and Linda wrote him checks and allowed him use of her “luxurious home.” Id. Thus, we found that it was “clear from the record that Anderson benefit from [Ben’s] largesse and [Linda] benefit financially from her relationship with Anderson.” Id.

¶21. We also affirmed the chancellor’s termination of alimony on the ground that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id. (quoting Anderson v. Anderson, 692 So. 2d 65, 72 (Miss. 1997)). [Fn omitted]    *   *   *

B. Living Arrangements and Financial Affairs

¶23. As noted previously, a de facto marriage may exist where an alimony recipient and a third party have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope, 803 So. 2d at 504 (¶12) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). In Pope, the chancellor found that no material change in circumstances had occurred where the ex-wife became “romantically involved with another man,” she “spent a number of weekends in his company” at his expense, and “on five or six occasions [he] stayed overnight in her home.” Id. at (¶11). There was also evidence that he “helped her buy groceries” when he visited and loaned her $4,000, which she later repaid. Id. We affirmed, concluding that the chancellor did not abuse his discretion by finding “that the relationship . . . had never risen to the level . . . [of] a de facto marriage relationship.” Id. at (¶13).

¶24. Conversely, in Burrus, we affirmed a chancellor’s finding of a de facto marriage between the alimony recipient, Jolee, and James, who regularly stayed at her house. James had a key to Jolee’s home and kept his clothes there.” Burrus [v. Burrus], 962 So. 2d [618,] at 622 (¶18) [(Miss. App. 2006)]. Jolee also gave James an ATM card for her bank account and authority to use it. She spent more than $7,500 on, among other things, James’s attorneys’ fees and other costs of his defense on criminal charges, his motel rooms while he was attempting to evade arrest, and his clothes, cell phone, and cell phone bills. Id. “In return, James . . . continually performed and provided ‘in kind’ household services and chores in Jolee’s home, including maintenance and repair of the home.” Id. “Additionally, Jolee testified, as did her children, that she had recently gotten a tattoo that [said], ‘James’ girl.’” Id. [Fn omitted]

A few comments to follow in a later post.