The Defrauded Father and Custody
December 9, 2015 § Leave a comment
It is axiomatic that a natural parent is presumed to have the first right against all the world to have custody of his or her own offspring. But this so-called “natural parent presumption” does have some exceptions.
In the oft-cited case, Griffith v. Pell, 881 So.2d 184 (Miss. 2001), the MSSC held that a husband who had acted in all respects as the father of a child, and who learned in the course of divorce proceedings that he was not the father of that child, could be granted visitation, and even custody, over the objections of the mother. The father’s status, of course is what we know as “in loco parentis” — literally “in the place of the parent.”
In JPM v. TDM, 932 So.2d 760 (Miss. 2006), the court held in scenario similar to Pell that the husband was the “father in fact,” and so was not required to submit additional evidence to rebut the natural parent presumption. But the MSSC has made it clear that Pell and JPM are limited to their unique facts:
[I]n loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively.
In re Waites, 152 So.3d 306, 314 (¶¶15-16)(Miss. 2014).
In the recent COA case, Welton v. Westmoreland, handed down November 17, 2015, the court affirmed a chancellor’s conclusion that Daniel Westmoreland stood in loco parentis to his step-daughter, Justice, and affirmed the chancellor’s modification of the parties’ divorce judgment to award him custody of her, over the objection of his ex-wife, Sabrina. Some of the pertinent facts from the court’s opinion at ¶1, penned by Judge Wilson:
Daniel is not Justice’s biological father, but until she was twelve years old, she believed that he was. Justice’s biological father abandoned her and has never made an attempt to see her since her birth. Although Daniel knew that he was not Justice’s biological father, he and Sabrina raised her together from the time she was four months old, and in 2004 Sabrina petitioned a court to change Justice’s surname to Westmoreland. Justice learned that Daniel was not her biological father only when, in the lead-up to the instant litigation, Sabrina made a unilateral—and, the chancellor found, “very hurtful”—decision to tell her. After a hearing, the chancellor modified custody and awarded Daniel physical custody of both children.
Daniel and Sabrina had lived together before they married, and during that cohabitation Daniel was led to believe that he was father of Justice. After they married, he learned the truth, but nonetheless acted in every respect as the child’s true father. When Sabrina petitioned a Missouri court to change the child’s surname to Daniel’s, she averred that the natural father had abandoned the child, and the proof was that the natural father had never participated in the child’s life. In their divorce, Sabrina and Daniel included the following language in a PSA: ” … Justice … is not the biological or adopted daughter of [Daniel], but … Justice … has developed a strong bond with [Daniel] and it is in [Justice’s] best interest that [she] … have visitation with [Daniel] … ”
That latter language, establishing visitation, was crucial in the trial court’s determination that it had jurisdiction per the UCCJEA. And the COA affirmed the chancellor’s decision that he had jurisdiction.
There are plenty of other facts in this case that supported the chancellor’s decision. The majority concluded that the chancellor had properly applied and followed the law in this case. In essence, the COA majority agreed with the chancellor that this case was governed by Pell.
You can read the full facts, along with the strong dissent by Barnes, joined by Irving and James, for yourself.
What this case highlights for us down here at ground level is that there are still circumstances where in loco parentis is a viable basis to seek modification, but the circumstances have to be quite particularly akin to those in Pell if your client hopes to succeed.
When Separate Maintenance Morphs into Alimony
December 8, 2015 § 2 Comments
After William Lane’s wife, Stella, obtained a Mississippi separate maintenance judgment, William moved to Texas and obtained a divorce from Stella there. He then petitioned the Mississippi court to terminate alimony because he was no longer married to Stella.
The chancellor refused William’s request, ruling apparently that the separate maintenance would continue as alimony, and William appealed. In Lane v. Lane, decided December 1, 2015, the COA affirmed. Judge Fair, writing for the majority, laid out the rationale:
¶8. “[A] divorce action involving one resident party and one foreign party may or may not be able to adjudicate personal rights, though it can sever a marriage as long as at least one party is a resident of that state.” [Lofton v. Lofton, 924 So.2d 596, 601 (Miss. App. 2006)]. William personally appeared before the Texas court. At the time the suit was filed, he had been a domiciliary of Texas for six months. Stella entered a general appearance through local counsel, ultimately signing the divorce decree along with William as to “form and substance.” The divorce decree specifically did not litigate the issues of support and property division. In fact, the decree declined jurisdiction over all but the divorce itself, deferring to the chancery court and its separate-maintenance judgment for “all issues involving the division of the property and debt of the parties.”
¶9. In Weiss v. Weiss, 579 So. 2d 539, 540-41 (Miss. 1991), the Mississippi Supreme Court reaffirmed that Mississippi law allows for separate litigation of divorce and alimony. Thomas and Barbara Weiss married in Mississippi. Id. at 540. Thomas later moved to Louisiana and filed for divorce. Id. That same year, Barbara filed a request for separate maintenance in Mississippi. Id. The Louisiana court granted the divorce but reserved the issue of alimony for the Mississippi court. Fn2 Id. Our supreme court held that the Mississippi court had jurisdiction to determine alimony because the parties’ foreign divorce decree did not litigate the issue of alimony. Id. at 541.
Fn2 Barbara’s claim for separate maintenance was no longer proper since a divorce had been granted but was convertible to a claim for alimony. Weiss, 579 So. 2d at 541. Separate maintenance and alimony may both result in payments for a short period of time or an extended period of time (the period of time for separate maintenance is more uncertain). Id. at 542.
¶10. The supreme court dealt with a similar issue in [Chapel v. Chapel, 876 So.2d 290 (Miss. 2004)]. In that case, the Jackson County Chancery Court awarded Grace Chapel separate maintenance in 1996. Id. at 292 (¶5). Mr. Chapel was granted a divorce in Virginia in 1997. Chapel, 876 So. 2d at 292 (¶6). The Mississippi chancellor modified the separate-maintenance agreement in 1998 and 2001. Id. at 294 (¶13). Grace argued that the chancellor lacked subject-matter jurisdiction because the Virginia divorce decree terminated the original separate-maintenance agreement. Id. at 293 (¶10). The supreme court held that “the . . . chancery court continues to have jurisdiction in what originally was the separate-maintenance case, but which converted to one for alimony and other claims compatible with divorce actions[] after the date of the foreign divorce.” Id. at 295 (¶15). Fn3 In her treatise, Bell on Mississippi Family Law (2d Edition 2011), Professor Deborah Bell refers to this as a “recharacterization” of separate maintenance as alimony.
Fn3 The supreme court also stated that because “neither party . . . made formal objections to the chancellor’s authority to modify the original separate-maintenance judgment after the Virginia divorce was granted, it is not necessary for the Court to reach the issue of whether . . . a foreign divorce decree[] terminates a domestic court’s order of separate maintenance.” Chapel, 876 So. 2d at 294 (¶11).
¶11. Like the divorce decree in Weiss, the Texas divorce decree in the present case expressly reserved Stella’s rights to enforce the separate-maintenance order. And, similar to the wife in Chapel, Stella was awarded separate maintenance prior to the entry of a foreign divorce decree, and the foreign decree did not address the issue of separate maintenance. We do not find, like the dissent, that Stella’s failure to expressly petition for alimony prohibits the chancellor’s sua sponte “recharacterization” of separate maintenance as alimony. As stated in Weiss, “‘[a]limony’ and ‘maintenance’ are merely different words used in differing situations to describe the same thing.” 579 So. 2d at 541 (citation and quotation omitted) (emphasis added). Mississippi law clearly provides that the chancery court retained jurisdiction over William and Stella’s separate-maintenance agreement, as acknowledged by the Texas court with the consent and agreement of the parties. [Emphasis in original]
It did not help William’s cause that the parties’ divorce agreement in Texas included language specifically acknowledging the continuing jurisdiction of the Mississippi court, and the Texas judgment afforded the Mississippi judgment full faith and credit and recognized its continuing jurisdiction. Any different language in Texas, however, would not have changed the outcome. Once Mississippi’s courts have acquired jurisdiction over the property and support (maintenance) issues, a subsequent divorce in another state is not effective to deprive the Mississippi court of jurisdiction over those issues.
The dissent would have held that by failing to request “recharacterization” of the separate maintenance award as alimony Stella deprived the chancellor of authority, making it erroneous for him to do so. The majority rejected that approach.
The MSSC dealt with a similar set of issues last year in Pierce v. Pierce, about which I posted here.
Oh, and before I leave the subject, here are three quotes you might find helpful next time you have to deal with an alimony case:
- “Alimony — the ransom that the happy pay to the devil.” — H.L. Mencken
- “Alimony is like buying oats for a dead horse.” — Arthur Baer
- “Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else’s cash.” — P.G. Wodehouse
Don’t Forget The MRCP Revision Project
December 7, 2015 § Leave a comment
The MSSC has invited all members of the Bar to submit comments and suggestions for revisions to the MRCP. You can access the page where submissions to date are posted at this link.
Send your suggestions to P. O. Box 249, Jackson, MS, 39205. Deadline is December 31, 2015.
So far there are only two submissions.
“Quote Unquote”
December 4, 2015 § Leave a comment
“Though boys throw stones at frogs in sport, yet the frogs do not die in sport but in earnest.” — Bion of Borysthenes
“If you want to discover just what there is in a man — give him power.” — Francis Trevelyan Miller
“When strength is yoked with justice, where is a mightier pair than they?” — Aeschylus
Temporary Support in a Paternity Case
December 2, 2015 § 2 Comments
Is there a right to a temporary hearing in a paternity case? If so, by what authority?
We know that chancellors in divorce cases may grant temporary relief per MCA 93-5-17(2), which allows the judge to make orders for “temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.”
In paternity cases, however, you can search high and low in Title 93, Chapter 9, dealing with paternity actions, and you will not find a similar statute conferring temporary authority. So, does that mean you can’t have a temporary hearing in a paternity action?
In a word, no.
The answer is in MCA 93-11-56(10), which states:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
I have had a lawyer argue that if paternity is uncontested, then there is no pending determination, so temporary relief should be denied. I disagree for the reason that I believe the “determination of parentage” means a final judgment. If there is no final judgment, then I think temporary relief is appropriate, as it would be in a divorce.
So, is the court limited by the language of the statute to temporary support only, leaving the parties to play tug-of-war with the child until a final hearing can be had? I think that would be an absurd result. Section 93-11-65 gives the court general authority to hear custody determinations. Chancery courts are charged to do what is in the best interest of the child. In my opinion, the court must act.
Next time you are asked by a chancellor by what authority you are asking for temporary relief in a paternity case, cite MCA 93-11-65(10). You won’t find it among the paternity statutes.
As a side note, our legislature has amended the custody and support statutes repeatedly to accommodate requests by DHS to address issues they have faced. As a result, we have a mish-mash of conflicting and unclear language, some of which is difficult to harmonize with standard practice in chancery court. One of many examples is the TPR statute that was clearly amended to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between chancery and county court actions where appropriate, and remove the ambiguities.
Obergefell, the MSSC, and Marbury v. Madison
December 1, 2015 § 2 Comments
As previously noted, the MSSC simply dismissed the appeal in the Czekala-Chatham v. State case, rather than address the merits. Two justices would have voted, in essence, to reverse Obergefell because, in their view, it was wrong, and they wrote what amounted to dissenting opinions.
Philip Thomas explains why the dissenters are swimming against the tide of legal history.
Where to Publish
November 30, 2015 § 4 Comments
Sometimes you just have to publish. It may be to complete service of process, or it may be notice to creditors in an estate, or it may be notice of a foreclosure sale. How and where do you publish notice?
Of course, when in doubt, read the rule or statute that applies. But that’s an overly-optimistic view. Some of you will stubbornly soldier on doing some of the most absurd things, like the attorney in a Lauderdale County guardianship recently who published process to the purported father in a Warren County newspaper because that was the man’s last-known county of residence. While that sounds a nice due-process tone, it just doesn’t meet the requirements of MRCP 4. So here are a few pointers:
Service of Process. Everything you need to know about publication process is in MRCP 4(c)(4). Subsection (B) of that rule requires that the publication be made “once each week during three successive weeks” in a newspaper of the county in which the pleading, account, or other proceeding is pending if there is such a newspaper. If there is no such newspaper, then you must post your notice on the courthouse door of the county, and publish it in the newspaper of an adjoining county or in a Jackson newspaper. I believe that the term “newspaper of the county” means one published in the county. That would be consistent with statutes requiring publication, and is the only common-sense interpretation at which I can arrive.
Remember that the courts strictly interpret the process rules. Close does not get you the cigar. You must strictly comply with the rules. There are many pitfalls awaiting those who try to slop through without attention to strict compliance, as I have posted about here before.
Notice to Creditors. MCA 91-7-145 requires that notice to creditors of an estate shall be made in “some newspaper in the county.” This publication requirement also applies in guardianships and conservatorships, per MCA 93-13-38(1). Section 91-7-145 goes on to say that “If a paper be not published in the county, notice by posting at the courthouse door and three (3) other places of public resort in the county shall suffice,” and you must file an affidavit attesting to the posting.
Before you publish, you must file an affidavit of the fiduciary that he or she has made a reasonably diligent effort to identify and give notice to persons who may have claims against the estate. Failure to file the affidavit before publication voids the publication.
Foreclosure. MCA 89-1-55 requires that a foreclosure sale be advertised for three consecutive weeks “in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein,” and by posting the notice at the courthouse. The statute specifies that the land must be sold in the county where it is located, or the county of the residence of the one of the grantors, or, where the property is situated in more than one county, where the parties have contracted for the sale. Where a city extends into more than one county, a newspaper published in the city is deemed to be published in all the counties into which the city extends. Warren v. Johnston, 908 So.2d 744, 748-49 (Miss. 2005).
Reprise: What Sets You Apart?
November 25, 2015 § 3 Comments
Reprise replays posts from the past that you may find useful today.
WHAT SETS YOU APART?
November 29, 2011 § 2 Comments
Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”
His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”
Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.
But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.
Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.
My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.
Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.
What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?
What You Get to Decide as Attorney
November 24, 2015 § 3 Comments
Every now and then a lawyer will shrug his shoulders and say, “I filed it because that’s what my client told me to do.” Or, “I didn’t want that language in the agreement, Judge, but the client insisted.”
Things like that make me scratch my head and wonder what are today’s boundary lines between the lawyer’s authority and the client’s decision-making realm.
This article by Megan Zavieh on Lawyerist entitled Who Decides What in the Attorney-Client Relationship offers some helpful guidance.
I noticed that she specifically stated that, although the client gets to determine the goal, the attorney gets to decide the means. What happens, though, when the client’s objective is to drag out the litigation as long as possible with frivolous and vexatious motions, unnecessary and unnecessarily voluminous discovery, and to run up the cost to the opposing party to bleed them dry? Or what if the client’s sole objective is revenge by disclosing embarrassing information on the very periphery of relevance? These can be some tough choices for the attorney, especially when the client is willing to pay. How much of your reputation are you willing to spend for that fee?
When I represented clients, I made it clear that I would make the decisions about strategy and tactics, and I didn’t need the client’s helpful guidance in how to do that. In that way, I made sure that I was doing what I felt was ethical and was zealous representation within the bounds of the law. When clients, untrained in and unencumbered by ethical rules, begin calling those shots, you can find yourself in big trouble.
No More Heightened Scrutiny, But …
November 23, 2015 § Leave a comment
Back in April of last year I pondered the COA’s decision in Burnham v. Burnham, which affirmed the chancellor’s rulings on child support and equitable distribution in a divorce, but subjected his findings to “heightened scrutiny” and “less deference” because he adopted one side’s proposed findings of fact and conclusions of law verbatim. That post is here.
Dissatisfied with the COA’s affirmance, Matthew Burnham filed a petition for cert, which the MSSC granted. One issue he raised was the chancellor’s verbatim adoption of the other side’s proposed findings of fact and conclusions of law.
In ¶7 of the MSSC’s opinion in Burnham v. Burnham, handed down November 12, 2015, Justice Dickinson stated:
In Bluewater Logistics, LLC v. Williford, we abandoned the rule that a chancellor’s decision to adopt a party’s proposed findings of fact was subject to “heightened scrutiny.” A chancellor’s factual findings , even those adopted from a party, are reviewed for an abuse of discretion. [footnotes omitted]
So that would seem to be the last word on that subject.
This case does, however, highlight a pitfall of proposed findings. The MSSC reversed because several of the chancellor’s findings of fact, particularly those upon which he based a finding of dissipation of assets, were unsupported by evidence in the record. Those findings of fact were submitted to the chancellor by the attorneys for Mrs. Burnham. Although the chancellor had the duty to satisfy himself that the proposed findings he adopted were accurate and supported in the record, the first duty was on her attorneys to ensure that their proposed findings were accurate. As the outcome of this case illustrates, if you play loose with the facts, it can cost your client down the road.
Chancellors have different approaches to proposed findings. Some ask for them in many cases, particularly complicated ones. Others have told me that they do not like them because lawyers tilt them in favor of their clients. Still others, as I do, call for them selectively.
If you’re going to offer proposed findings, make sure you draft them like the judge is supposed to — relying only on facts in evidence and drawing fair inferences, and applying the law as it is applies. If you use proposed findings as a partisan opportunity, you just might snatch defeat from the jaws of victory.
The Better Chancery Practice Blog 