Tie Goes to the Runner
November 3, 2015 § 1 Comment
Aside from the fact that the MSSC was called upon to review a chancellor’s award of $30,110,618 in combined actual and punitive damages and civil penalties under the Consumer Protection Act, the case of In the Matter of Mississippi Medicaid Pharmaceutical Average Wholesale Price Litigation: Sandoz, Inc. vs. State of Mississippi, decided October 26, 2015, is remarkable for the fact that it was affirmed by a divided court, and for how Mississippi handles the precedential value of split decisions.
But before we get to that, this case is also fascinating for the mirror-image approaches that the majority and dissents took toward the chancellors’ conclusions re the evidence.
This was a case in which Sandoz, Inc., a generic drug supplier, provided the State Division of Medicaid with its Average Wholesale Price (AWP) index, purporting to show the cost to pharmacies for drugs wholesaled to them by Sandoz. The chancellor found, however, that the AWP claimed by Sandoz exceeded actual wholesale prices charged to the pharmacies by some 886%, causing the state to overpay for drugs provided under the Medicaid program. The chancellor found that Sandoz was guilty of common-law fraud, and that it violated Mississippi’s Consumer Protection Act, and he assessed damages. The chancellor also denied the state’s claim for attorney’s fees, and its claims that the chancellor improperly calculated damages.
Sandoz and the state both appealed. The MSSC affirmed on both direct and cross-appeals.
Justice Chandler wrote the plurality opinion, joined by Kitchens, King, and Randolph specially concurring. Justices Dickinson and Lamar wrote dissenting opinions that were joined by Pierce and Coleman. Waller did not participate. If you’re counting, the score is Affirm = 4, Dissent = 4, Abstain = 1. If the vote is tied, the decision is affirmed. See Rockett Steel Works v. McIntyre, 15 So. 2d 624 (Miss. 1943) (“Three of the judges of this Court are of the opinion that the judgment of the court below should be affirmed, and three [are] of the opinion that it should be reversed; consequently, that judgment must be, and is affirmed.”).
And this is the point at which it gets interesting. Justice Randolph concurred in the result, but he vigorously argued that the court should not have issued an opinion in the case, but rather should have issued an order merely affirming since there was no majority in agreement to issue a statement of the law on the subject. He cites SCOTUS opinions that support his position holding that split decisions have no precedential value, and concludes by questioning why our court clings to its practice of issuing opinions that can be used as precedent in such cases. I have to say that I find his brief concurring opinion persuasive. I commend it to you.
Justice Lamar’s opinion is also interesting for its recitation of the facts in the record. She calls into question many of the chancellor’s conclusions. The prevailing opinion was ultimately swayed, however, by deference to the trial finder of fact’s conclusions.
This case presents some complicated facts, but it’s worth read for its glimpse into the inner workings of our highest court.
The Extent of Grandparental Visitation
November 2, 2015 § 4 Comments
Jason McKinney and his wife, Shelida, had three children. Jason’s parents, Harold and Kim McKinney, enjoyed spending time with their grandchildren.
After Jason was killed in an automobile accident in 2012, however, Harold and Kim found it increasingly difficult to see and spend time with the grandchildren. It seemed that every time they tried to visit the children had some kind of scheduled activity that prevented or precluded the visit.
Harold and Kim filed a petition with the court for grandparental visitation. Shelida responded by denying that they were not entitled to a court order because she had not denied them visitation, so that they were not entitled. she also denied in her testimony that the grandparents had been involved enough in her children’s lives during Jason’s lifetime so as to entitle them to a court order.
The chancellor found that Harold and Kim were entitled to a court order, and directed visitation every Monday afternoon from 3:30 pm until 7:00 pm, and the third weekend of every month from Saturday at 8:00 am until Sunday at 4:00 pm, and one week in the summer. Shelida appealed.
In McKinney v. McKinney, handed down September 29, 2015, the COA affirmed.
The COA opinion, by Judge Irving, first addressed Shelida’s contention that Harold and Kim were not entitled to visitation because they had not shown that they had been denied, and they did not establish the quality of relationship with the children that would qualify them under the statute. Rejecting Kim’s argument, the court pointed out that Harold and Kim were entitled to an order establishing visitation by virtue of MCA 93-16-3(1), due to the fact that their son, the father of the grandchildren, had died. That fact was the sole prerequisite to a court order, and they were not required to show that they had been denied visitation, or that they had established a viable relationship with the children, as required in MCA 93-1603(2), which applies when both parents of the grandchildren are alive.
Next, the court turned to Shelida’s argument that the chancellor awarded the grandparents too much visitation. Judge Irving’s opinion:
¶14. Shelida next argues that even if visitation was warranted, the chancery court erred in granting the grandparents more visitation than they exercised prior to their son’s death. She stresses that the grandchildren did not visit with their grandparents more than two or three times a week while Jason was alive, and she takes issue with the chancery court granting overnight visitation since the children had rarely spent the night at their grandparents’ house during Jason’s lifetime.
¶15. The Mississippi Supreme Court in Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (internal citations omitted), in expressing concern over excessive grandparent visitation, stated:
Natural grandparents have no common-law “right” of visitation with their grandchildren. Such a right must come from a legislative enactment. Although the Mississippi Legislature created this right by enacting [section] 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive as the rights of a parent.
¶16. For guidance, our supreme court has listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:
1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time;
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child;
3. The age of the child;
4. The age and physical and mental health of the grandparents;
5. The emotional ties between the grandparents and the grandchild;
6. The moral fitness of the grandparents;
7. The distance of the grandparents’ home from the child’s home;
8. Any undermining of the parent’s general discipline of the child;
9. Employment of the grandparents and the responsibilities associated with that employment;
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.
Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the grandparents visitation, the chancery court considered the best interests of the minor children and each of the Martin factors and ultimately fashioned a visitation schedule that took into consideration the grandchildren’s weekly schedule. And regarding the summer visitation, the court noted that it would grant visitation to the grandparents the second week in July so that Shelida would be able to celebrate the Fourth of July holiday with her children. We find nothing excessive about the amount of visitation ordered, and certainly nothing as comprehensive as would be awarded to a noncustodial parent. Therefore, we find no error in the decision of the chancery court. This issue is without merit.
A couple of takeaways:
- The grandparents’ visitation is not limited to the amount they experienced during the deceased parent’s lifetime. Rather, the extent of visitation must be based on consideration of the Martin factors and the circumstances of the children’s lives, taking into account that grandparental visitation is less extensive than parental visitation.
- Read this decision carefully and understand that there are two categories of grandparental visitation. The first category is nearly automatic; the second is much trickier and requires more proof.
- In rural areas it is not uncommon for the children to get on and off the school bus at the grandparents’ home, to run next door to see them at will, to spend nights and weekends with the grandparents, and to have the grandparents participate in almost every facet of the children’s lives. That less “comprehensive” rule announced in Settle v. Galloway seems too stringent in this kind of living arrangement. If a parent dies, why would the grandparents not have more visitation, even to the extent that the dead parent would have had if not deceased.
- The more detailed proof you offer to support the time the children have spent with the grandparents, and its quality, and what the grandparents have to offer, will strengthen your case when you represent the grandparents.
- In my experience, only grandparents who have truly had a negative influence on the family and would be genuinely bad for the children are denied visitation. Even if your client wants them to have no visitation, you need to help your client understand how the judge will use and apply the Martin factors. Tailor your proof to showing how that visitation should be minimized rather than denied.
What does it Take to Forfeit the Right to Support?
October 30, 2015 § Leave a comment
Ever since the MSSC’s 1980 decision in Hambrick v. Prestwood, it has been the law in Mississippi that a parent’s duty to support a college-age child is dependent on the child maintaining a good relationship with the payor.
That principle has been extended and clarified over the years. The COA’s September 29, 2015, decision in Lowrey v. Simmons included a concise explanation of the current state of the law on point. Judge Wilson for the court:
¶23. Under Mississippi law, a child generally will not forfeit support from a non-custodial parent unless his or her actions toward the parent are “clear and extreme.” See Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991). However, where the child is college-aged, a “lesser finding” that the child’s actions have caused a deteriorated relationship with the parent is sufficient to justify termination of support obligations, including obligations to pay for college. Stasny v. Wages, 116 So. 3d 195, 197-98 (¶11) (Miss. Ct. App. 2013). Under Hambrick v. Prestwood, 382 So. 2d 474, 477 (Miss. 1980), a parent’s duty to support and pay college expenses of a college-aged child “is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him.” Although Hambrick involved court-ordered support and college expenses, we have since applied its holding to cases, such as this one, involving obligations to which a parent has agreed as part of a comprehensive and voluntary divorce settlement. See Stasny, 116 So. 3d at 198, 199 (¶¶14-15, 17); but see Markofski v. Holzhauer, 799 So. 2d 162, 170 (¶38) (Miss. Ct. App. 2001) (McMillin, C.J., joined by Southwick, P.J., and Thomas and Lee, JJ., concurring in part and dissenting in part) (criticizing the extension of Hambrick’s holding to an obligation voluntarily undertaken as part of a contractual divorce settlement).
¶24. In this case, the chancellor did not cite Hambrick or any of its progeny as the basis for his ruling. Instead, he cited a “substantial and material change in circumstances”—the erosion of the parent-child relationship and failure to reconcile—as his reason for terminating Ryan’s obligations. Nevertheless, the chancellor’s decision appears to track the underlying rationale of the Hambrick line of cases, and Ryan has defended it on that basis in this appeal. Cf. Finch v. Finch, 137 So. 3d 227, 231, 237-38 (¶¶5, 35) (Miss. 2014) (chancellor found son’s “animosity toward his father” was a “material change in circumstances” justifying termination of father’s obligation to pay educational expenses; Supreme Court affirmed under Hambrick). Therefore, we will apply the applicable Hambrick standard.
¶25. Although the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship—indeed, that the parent is guilty of “inexcusable parental neglect”—and the child’s essential fault is in failing to respond to a neglectful, absentee parent’s belated efforts at reconciliation. For example, in Hambrick, the daughter had no contact with her father for six or seven years, she acknowledged that her dislike of him bordered on hatred, there was a strong inference that the mother was partially to blame for her animosity, and “[t]here [was] nothing in this record that would justify [the daughter’s] attitude toward her father.” Hambrick, 382 So. 2d at 477 (emphasis added). In contrast, in Polk v. Polk, 589 So. 2d 123, 131 (Miss. 1991), the Supreme Court applied Hambrick and reversed a chancellor’s decision not to order the father to pay the daughter’s college expenses because “the problems [between them] appear[ed] to be partly [the father’s] fault” and the father “seem[ed] to have abandoned [the daughter], either emotionally or financially.” (Emphasis added). In light of the father’s partial fault and prior abandonment of the child, the Court remanded the issue for further consideration, even though the daughter’s conduct toward her father was egregious. She had written letters to her father’s family that accused him of immoral acts and stated that he would “rot in hell” and that she would no longer acknowledge him as her father, and she had attempted to persuade local newspapers to publish her accusations, which the Court found “disturbing.” See id. at 130 31; id. at 131-32 (Lee, C.J., dissenting) (“[T]he attitude and actions of Kawanis [Polk] toward her father . . . have been much more egregious than that in Hambrick.“).
¶26. Thus, under Hambrick and Polk, a father is not entitled to full relief from otherwise valid obligations to pay for the support and college expenses of his child — here, obligations that he voluntarily accepted as one component of a comprehensive divorce settlement —based on an estrangement that is in large measure of his own making. Here, as the chancellor found, Ryan neglected his child beginning in at least 2010 and continuing into 2012. This abandonment included an especially “inexcusable” period of neglect when her mother was hospitalized for months, hundreds of miles away, with a life-threatening illness. During this difficult time in his daughter’s life, Ryan lived nearby but never so much as visited her. To be sure, in 2012, near the time he filed the instant complaint, Ryan did attempt to reconcile with Jilanna; and the chancellor found that Jilanna, not Ryan, bears primary responsibility for their failure to reconcile. We do not question these findings, and we emphasize that we accept all of the chancellor’s findings of fact, which are supported by substantial evidence. However, we hold that Hambrick does not apply to the facts found by the chancellor. Where a father’s own neglect is the proximate cause of the erosion of his relationship with his child, the child’s resistance to belated efforts to reconcile will not relieve the father of obligations of support and to pay college expenses that he voluntarily assumed as part and parcel of his own comprehensive divorce settlement. Accordingly, the part of the judgment suspending and terminating Ryan’s support obligations, including his obligation to pay college expenses, is reversed, and the case is remanded for further proceedings consistent with this opinion. [Fn omitted].
I think it’s fair to say that most chancellors require pretty strong proof to justify termination of a child-support obligation based on estrangement. Many years ago I defended a case in which the daughter would have absolutely nothing to do with the father because he had literally walked out on the family in the dead of night, leaving them destitute and in a half-finished home. The father never made any bona fide effort to reconcile with the daughter. The chancellor refused his plea to terminate the support obligation based on his own conduct. I am sure many of you have had similar experiences.
The Natural Parent Presumption and the Third-Party Action
October 28, 2015 § Leave a comment
What is the burden of proof on a third-party who is seeking to remove custody from a natural parent? It’s an important question in these days when we are seeing increasing numbers of parents who are abdicating their roles to others, and parents who are unfit to have custody of their children.
Denise Irle and David Foster were not married, but they were parents of two children, Britney and Chase. David was the caretaker of the children, but he died. Patty and Lavirl Foster, David’s parents, petitioned the court for custody of the children. Denise and the Fosters entered into an agreed order under which Denise was to have custody of Britney and the Fosters would have custody of Chase.
Shortly after entry of the agreed order DHS removed Britney from Denise’s home, and the Fosters again filed to get custody of the child. Following a hearing, the chancellor ruled that the Fosters had overcome the natural-parent presumption, and Britney’s best interest would be in the care of the grandparents. Denise appealed, claiming that the chancellor erred by not finding a material change in circumstances. The COA affirmed, and the MSSC granted cert.
In an opinion rendered October 8, 2015, in Irle v. Foster, the court took the opportunity to clarify the law:
¶7. Whatever doubt there may be about the grandparents’ burden, it is universally understood and accepted that a natural parent seeking to modify custody must demonstrate some change in the circumstances that were presented to the chancellor that led to the previous decree, and must show that the changed circumstances are material.
¶8. But thirty-five years ago in Thomas v. Purvis, this Court stated that “[t]he principle that there must be a material change of circumstances which adversely affects a child’s welfare before a custody decree may be modified only applies between parents of the child.” For two reasons, we find this sweeping statement needs clarification and correction.
…
¶9. First, Thomas cited Rodgers v. Rodgers as authority for the broad proposition that a material change in circumstances must be demonstrated only in cases involving natural parents. But nothing this Court said in Rodgers supports this proposition. The chancellor in that case—after concluding that a material change in circumstances had occurred, but without considering the natural-parent presumption—modified an original divorce decree to transfer custody of a minor child from the child’s natural mother to the child’s paternal grandparents. The mother appealed, arguing that she enjoyed the natural-parent presumption, and that the grandparents had presented insufficient evidence to rebut that presumption.
¶10. This Court agreed with the mother, recognizing that a natural parent may not be deprived of custody in favor of a third party unless the third party rebuts the natural-parent presumption by clear and convincing evidence.10 The Rogers Court certainly did not intend to place a burden on a natural parent that it did not place on third parties, thereby making it more difficult for the natural parent to prevail in a custody battle. Stated another way, if a natural parent is required to demonstrate a material change in circumstances in order to win custody, then certainly a third party has at least that same burden.
¶11. Importantly, the Rodgers Court reversed solely because the grandparents failed to rebut the natural-parent presumption, and it never considered or discussed whether the grandparents did or did not have an additional burden to show a material change in circumstances.
…
¶12. Unfortunately, it is not uncommon for natural parents to engage in numerous custody battles. But rarely do third parties—such as grandparents—attempt more than once to take custody from natural parents. This led to the second error in the Thomas Court’s reasoning, which was that it had failed to consider that there would be rare cases—such as the one before us today—where the third parties seeking to take custody from natural parents already had been before the court in a previous custody battle. So, while the logic is obvious that the material-change-in-circumstances test does not apply to third parties appearing for the first time before the chancery court, the same cannot be said where, as here, grandparents previously have been before the court on the very issue of who should have custody. Stated another way, grandparents who already have been before the chancery court in an attempt to remove custody from a natural parent may not reappear before the same chancery court, seeking a change in custody based on the same evidence and circumstances as existed when they first appeared.
¶13. So we hold that in cases involving a third party and a natural parent—where the third party has been before the court in a previous custody dispute over the child—the material change-in-circumstances test applies. A third party attempting to take custody from a natural parent under those circumstances is required to overcome the natural-parent presumption and to show a material change in circumstances from the previous decree.
¶14. Said differently, to obtain custody, the Fosters had to prove: (1) that a material change in circumstances had occurred since they last appeared before the chancellor; (2) that the natural-parent presumption had been rebutted; and (3) that the best interests of the child would be served by granting them custody. The chancellor applied this standard and credible evidence supported his judgment.
[All of the case citations are in footnotes which are omitted here because they are too tedious to copy and paste separately into this text]
So the rule now is that third parties who have previously attempted to obtain custody by court order must prove what is set out in ¶14 in order to modify custody in a later attempt. The upshot of the rule is that it prevents third parties from relitigating facts that have already been presented.
R.I.P. Chancellor Talmadge Littlejohn
October 27, 2015 § 2 Comments
Judge Littlejohn, of New Albany, passed away yesterday evening, October 26, 2015.
No More Disconnect
October 27, 2015 § Leave a comment
You’ve read here in the past about the disconnect between MRCP 32 and MRE 802.
MRCP 32 (a)(3)(B) says that the deposition of a physician may be taken and introduced into evidence, presumably to avoid the necessity of dragging him or her away from patients to testify in court.
A deposition standing alone, however, is hearsay, so we need to look to the MRE to see how we can qualify it as an exception, if we can.
Among the exceptions enumerated in MRE 802 for unavailable witnesses, there is none for physicians.
Since there is a conflict — or disconnect — between the MRCP and the MRE, the MRE prevails, because MRE 1103 provides: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the [MRE] are hereby repealed.”
Last Thursday the MSSC announced that it adopted the Rules Advisory Committee’s recommendation to cure the problem. You can read the rule and comment changes at this link. As I’ve said before, this discrepancy between the new rules has tripped up lawyers in litigation, and could trip you up, too, if you weren’t aware. This fix should eliminate this pitfall.
The Primitive Lawyer
October 26, 2015 § Leave a comment
Suppose you had decided to build a new house. You give your plans to two different contractors and ask for an estimate and for details how they plan to do the job. After a week or so, you interview the two contractors. Here is what you learn:
- Contractor 1 will use all up-to-date materials, power tools, and as few builders as necessary to accomplish the job. He will produce a structure and finish comparable in quality and price to the other recently-built homes in the neighborhood. Construction will take about four months.
- Contractor 2 avows that he uses only traditional construction materials and tools; no power gizmos. All nails and fasteners will be fashioned on-site by his own blacksmith. Lumber will be carved out of raw wood using adzes. Naturally, the use of traditional methods will require many extra hands. Because hauling of materials will be done by ox-cart, and materials will be prepared on the job, construction may take as much as two years, three tops. Oh, and he can’t project a price, but he will bill you as the work progresses.
So which contractor are you going to hire?
Lawyers are no different than those contractors. No matter how excellent your litigation skills and razor-sharp legal analysis, you are operating with a decided handicap if you are limiting yourself to 19th-century techniques of legal research, handling of pleadings and discovery, case management, and communication. Your dinosaurian ways will cost your client more for the same services that others are getting more promptly at lesser rates. Over time that will mean loss of clients and diminishing revenues.
It always tickles me to hear lawyers boast that “I don’t even know how to turn on a computer,” or “I don’t use email,” or “Social media? What’s that?” We live in an on-demand world. Clients are consumers of legal services just like Amazon customers are consumers of commodities. They expect an acceptable level of service right now. They order goods and services online and get their digital products instantly, and physical items in a day or two. They communicate via twitter, text, FB Messenger, and email. That’s especially true of 20’s and 30’s legal consumers, who are used to instantaneous communication and information. They have no patience for paper-and-pencil and snail mail.
Just as dangerous as no knowledge of technology is inadequate knowledge of technology. If you don’t have a clue as to how FaceBook, Instagram, Snapchat, Twitter, and all their ilk work, how can you mine those sources for info, and how can you help mitigate your clients’ faux pas on their accounts? Likewise, before you click “send” to transmit that digital discovery to opposing counsel, have you made sure that all the metadata that might include attorney-client communications and other privileged information has been stripped out?
Failure to keep up and develop technical competence has its consequences, as this article from Lawyerist aptly points out.
Reprise: Some Suggested PSA Provisions
October 21, 2015 § Leave a comment
Reprise replays posts from the past that you might find useful today …
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § 1 Comment
Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.
Protection from debts incurred by the other party:
Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.
Attorney’s fees:
Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.
Where other documents will be necessary to finalize the entire settlement:
Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.
To confirm and ensure that there are no unwritten or side agreements:
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.
Release of all claims:
Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .
Where the parties want the agreement to be enforceable whether or not approved by the court*:
Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.
A useful provision to ensure that there are no open-ended obligations:
Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.
Where one party is not represented:
Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.
Clarification that tax advice has not been rendered:
Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.
Closing the door on a party claiming later that the property should have been appraised:
Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.
If a former name is to be restored, it is a good idea to include that agreement in the PSA:
Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.
There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.
_______________
* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.
To Defer or Not to Defer
October 20, 2015 § Leave a comment
It sometimes happens that the chancellor chooses not to defer to the findings and recommendations of a guardian ad litem (GAL). When she opts not to defer, how should it be handled in the court’s ruling? That was a question raised in a recent COA case.
Jennifer Lowry and Ryan Simmons were engaged in a child-support dispute in which Ryan claimed that his future college and child-support obligations should be terminated based on his daughter’s refusal to have anything to do with him. Jennifer blamed Ryan for the deterioration of the relationship, and Ryan blamed Jennifer.
The chancellor appointed a GAL to investigate the reasons behind the child’s refusal to visit with her father.
In his report, the GAL found Ryan’s fault greater than the child’s, and recommended modification to reduce Ryan’s college education support obligation conditioned on the child’s participation in counselling to rehabilitate the relationship, and, if the child refused or failed to participate, then complete termination of the obligation.
The chancellor did not follow the recommendation of the GAL, opting instead to terminate the college education obligation completely, based on the child’s lack of effort to reconcile with her father. Jennifer appealed. One of her several grounds for appeal was that the chancellor did not explain his reasons for rejecting the GAL’s recommendations.
In Lowrey v. Simmons, handed down September 29, 2015, the COA found that the chancellor had not erred in how he handled the GAL report. Judge Wilson, for the court, explained:
¶11. Jennifer next argues that the chancellor erred by not following the GAL’s recommendations.1 Jennifer asserts that the chancellor misstated the GAL’s recommendations and erroneously believed that he was following those recommendations. Jennifer further argues that because the chancellor was not following the GAL’s recommendations, he was obligated to explain why he had rejected the them. Jennifer relies on Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007), in support of her argument. In Floyd, the Supreme Court stated, “if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. However, Jennifer fails to note the context of the Court’s statement. The Court wrote:
[A] chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. . . . While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law.
Id. (emphasis added).
¶12. The appointment of a GAL is mandatory where there are allegations of abuse or neglect of a minor or where there is a contested termination of parental rights. See Miss. Code Ann. § 93-5-23 (Supp. 2014); Miss. Code Ann. § 93-15-107(1) (Rev. 2013). Where the appointment of a GAL is discretionary, there is no requirement that the chancellor state his reasons for deviating from the GAL’s recommendations. Porter v. Porter, 23 So. 3d 438, 449 (¶28) (Miss. 2009); Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App. 2007). Moreover, “there is no requirement that the chancellor defer to the findings of the [GAL].” S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000).
¶13. There was no allegation of abuse or neglect in the present case. Nor was this an action to terminate parental rights. Thus, the chancellor was under no obligation to appoint a GAL. Because the chancellor’s appointment of the GAL was discretionary, he was not obligated to detail his reasons for diverting from the GAL’s recommendations. Furthermore, in his order, the chancellor did discuss the recommendations of the GAL. Although the chancellor did not follow the GAL’s recommendations, chancellors are never required to adopt the GAL’s recommendations. Id. (“[T]here is no requirement that the chancellor defer to the findings of the [GAL]. . . . Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).
That does not require any elaboration.
Although she lost on this point, Jennifer prevailed on her argument that the court erred in terminating the college support obligation. That is a subject for another day.
Relief in a Vacuum
October 19, 2015 § Leave a comment
If the separate maintenance is denied, may the chancellor nonetheless order financial relief?
In Spotswood v. Spotswood, decided by the COA on September 1, 2015, the chancellor at trial ruled that Lori and Robert Spotswood were equally at fault in the separation, and, therefore, that Lori was not entitled to separate maintenance. The chancellor ordered Robert to reimburse Lori for the monthly health insurance premium that she pays through her employment for his health insurance coverage, and to pay one-half of the mortgage on the marital residence.
On the face of it, the judge’s order makes some sense. Robert, after all, is benefitting from Lori maintaining his coverage under her health insurance at her expense. She may not be able to cancel that coverage while they are still married. Likewise, Robert is no longer living in the home, and Lori is stuck with 100% of a joint debt. It only seems fair that Robert should pay his fair share.
Robert appealed, though, complaining that the judge had no authority after he denied separate maintenance to order in this action that he make those payments. Judge Irving, writing for the court, agreed, reversing and rendering:
¶7. In Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008) (internal citations and quotation marks omitted), this Court stated:
Separate maintenance is [a] court[-]created equitable relief based upon the marital relationship. The purpose of a decree for separate maintenance is to compel the husband to resume cohabitation with his wife or to provide for her separate maintenance. . . . The [chancery court] may award separate maintenance when (1) the parties have separated without [substantial] fault by the [requesting party;] and (2) the [nonrequesting party] has willfully abandoned the [requesting party] and [has] refused to [provide] support [therefor].
(Emphasis added).
¶8. For a chancery court to award separate maintenance, it must first find that the aforementioned requirements have been met. Once those requirements are met, then the court may, in its discretion, award support. However, if the court finds that separate maintenance is unwarranted, it cannot, in the name of equity, do an end-run around what the law forbids by ordering one spouse to undertake certain financial obligations for the benefit of the other spouse. In this case, because the chancery court found that Lori was not entitled to separate maintenance, the chancery court lacked the authority to order Robert to make the payments.
So, does this mean that Lori is stuck making Roberts’ health insurance premium payments and the entire mortgage payment? Not necessarily. The opinion continues:
¶9. To be clear, we do not address the issue of whether the chancery court erred in denying Lori separate maintenance, as that issue is not before this Court. Nor should anything in this opinion be interpreted as holding that Lori is required to continue to pay Robert’s insurance premiums or the entire mortgage payment without reimbursement from Robert. As to the latter, the mortgage contract dictates the obligations of the parties. We only hold that the chancery court erred as a matter of law in ordering Robert to make the payments after denying Lori’s request for separate maintenance. Accordingly, we reverse the chancery court’s judgment as to the payments and render judgment in favor of Robert.
In other words, Lori may maintain an action to recover from Robert, but not in this case, since all she sought was separate maintenance, which was denied. I think she might have achieved a different result had she pled in the alternative for either separate maintenance or for contribution from Robert for his share of the premiums and/or mortgage payments. You can join as many actions as you have against a party in the same complaint.
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