The Practicality of Joint Custody
August 10, 2015 § 7 Comments
We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.
When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).
Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.
Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.
Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.
Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.
In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.
That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.
This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.
One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.
“Quote Unquote”
August 7, 2015 § Leave a comment
“There is no old age. There is, as there always was, just you.” — Carol Matthau
“Once the game is over, the king and the pawn go back into the same box.” — Italian Proverb
“If you don’t know how to die, don’t worry; Nature will tell you what to do on the spot, fully and adequately. She will do this job perfectly for you; don’t bother your head about it.” — Michel de Montaigne
An Exception to the Slayer Statute
August 6, 2015 § 1 Comment
Only yesterday I posted here about the danger posed by the untreated mentally ill in society.
Last week the MSSC handed down a decision in a case involving a “severely mentally ill man,” a homicide, and an adjudication at the trial level that he was not to inherit from his victim. The court reversed and remanded.
Here is the brief statement of grisly facts from the opinion by Justice Randolph in Estate of Armstrong: Armstrong v. Armstrong, handed down July 30, 2015:
¶2. On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989. [Fn omitted] Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
¶3. Joan’s death certificate listed her cause of death as “contusion of brain with subdural and subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple strikes to her head.
John, who experienced delusions and hallucinations and had been diagnosed as paranoid schizophrenic, admitted to the police and his sister that he had killed his mother. He was found by the circuit court not to be competent to stand trial, and was sent to Whitfield until he might become competent to stand trial.
Joan’s testate estate was opened, and John, along with his siblings, were beneficiaries. The executor filed a motion to declare John’s devise void, pursuant to MCA 91-5-33, known as the “Slayer Statute,” which provides in part as follows:
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
A guardian ad litem was appointed. She defended the motion on several grounds, but primarily on the basis that the executor failed to show that John had willfully caused Joan’s death as prescribed in the statute. The chancellor found that willfulness as provided in the statute had to be interpreted in a civil, not criminal, context, and that John’s willfulness was evidenced by:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John, “feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and felonious murder of Joan.
The chancellor granted the motion, and John’s GAL appealed.
In a case of first impression, the MSSC reversed and remanded the case to the chancery court for a determination whether John was insane at the time of the killing:
¶22. It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.
¶23. In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used by him for the purpose,” and “was no more his act, in the sense of the law, than if he had been impelled by irresistible physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)).
¶24. While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is not the duty of this Court to determine public policy. If the law as it now exists is in need of change, that task is for the Legislature.
A few thoughts about this case:
- Does this case forebode a shift in the standard for criminal responsibility?
- My hat is off to attorney Stacie Zorn for her work as GAL. She did exactly what a GAL in that role is supposed to do, and she accomplished a change in the law in the process.
- Operation of the “Slayer Statute” is a subject I have posted about here before.
- I had written yesterday’s post about mental illness week before last and scheduled it for publication yesterday. The MSSC’s Armstrong Estate decision came down in time for the resulting juxtaposition.
People in the Shadows
August 5, 2015 § 9 Comments
Ghandi is often quoted as having said that “A civilization is measured by how it treats its weakest members.” Hubert Humphrey said, “the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.”
It’s fashionable today to emphasize personal responsibility over governmental (and taxpayer) responsibility when it comes to the poor, the needy, the elderly, and even children. Government keeps looking for ways to stint on spending on people at the margins.
What those people have in common is that they are our weakest members, and arguably the weakest among them, “in the shadows of life,” are our mentally ill.
If it is true that we are to be measured by how we treat the mentally ill among us, and the moral test of our government is how we treat our mentally ill, then, I must tell you, we fail to measure up, and we fail the moral test.
Our mental heath system in Mississippi is not just broken, it is broke. It is underfunded and not up to the task.
It happens all too often that a chancellor will order a person to be committed to a state hospital one day, only for that same person to be released days or at most a couple of weeks later. The hospital does not have the resources for long-term care. Instead, the patient is admitted, then given enough medication to alleviate the symptoms, resulting in a finding that the patient is no longer a danger to himself and others, and thereby resulting in his release back into the general public. Once back on the street the person stops taking his medication and soon lapses again into being a true danger to himself and others, requiring yet another commitment proceeding, usually at the expense of the family.
Many of the unkempt, confused people you see wandering the streets are mentally ill. They are the castaways who, due to mental illness, have exhausted the support, financial resources, and patience of families and friends, leaving them nowhere to go but the streets. Mental illness impairs judgment and insight. It impairs one’s ability to take care of oneself.
More significantly, the mentally ill can be dangerous. Paranoid schizophrenics can be extremely dangerous, and even murderous. Ask the folks in Lafayette, Louisiana, whether the indisputably mad man who gunned down two innocent women in a cinema was not dangerous.
I once represented parents who had committed their paranoid-schizophrenic son to the state hospital system nearly a dozen times. He threatened to kill them, other family members, and neighbors whenever he was off of his medication. Once in the hospital, with his medication regulated, the voices in his head became more benign, and he calmed down. Then he was released, stopped taking his medication, and the demons soon returned from where the medications had banished them, more furious than ever. The parents feared for their lives, and all our system could offer them was a revolving door. Perhaps a greater level of protection would have been available if the young man actually killed or seriously maimed someone.
Let me be clear that I am not trying to stigmatize or demonize the mentally ill. Not all are dangerous. But we do have to recognize that some are, and that those do pose a threat to public safety.
It is the responsibility of the state to protect the safety of the citizenry, and to provide adequate systems for taking care of those who are so impaired that they can not care for themselves. Yet, we do not do either in Mississippi when it comes to the mentally ill.
The mentally ill have no PAC or voting bloc, as far as I know. They are not invited to, much less welcome at, $500-a-plate political fundraising dinners. We live in a pay-to-play political world, where political clout gets results. The mentally ill have no political clout, and it shows in how we prioritize their needs in our state budget.
Years ago, the standard treatment for such undesirables was to buy them a bus ticket to somewhere far away. Nowadays, we don’t buy the ticket; we simply turn them out onto the street with the hope that they will go somewhere else and be someone else’s problem.
It does not have to be this way. We can fund our mental health system at a level where it can provide an acceptable level of service. It’s the 21st century, after all. We should be at that point.
Or, we can buy bus tickets.
[This post was written before the 60 Minutes piece on this subject was aired last Sunday.]
I Think, Therefore I am, I Think
August 4, 2015 § Leave a comment
Existentialism for Millenials, by Sarah Solomon.
Researching the Research
August 3, 2015 § 5 Comments
Commoditization of legal matters has caused small-firm practitioners to look for areas to cut costs. Lawyers have told me that they have discontinued services like Westlaw and Lexis because they are simply too expensive.
Google Scholar offers a free legal research tool. You can access it at this link. I can’t really tell you how accurate or helpful it might prove to be in the routine practice of law, because I haven’t spent much time with it. I accessed it on a test basis last week and entered “joint custody impractical” as a search term. It returned a bunch of cases, all of them, as far as I could see, on point. It did not return last week’s COA decision in Thames v. Thames, which is the latest case on that issue. Nor did it give me Mosley v. Triangle Townhouses, LLC when I searched for “real estate commission for non-licensed broker,” likewise a COA case from last week. I don’t know the delay between hand-down and reporting on Google.
An article that may help you discern the strengths and weaknesses of the Google engine can be found at this link.
The MS Bar offers access to the legal search engine Casemaker as a benefit of membership, thereby saving you additional subscription fees for that service. You may have had excellent results with it, but I never did when I was practicing, and I have heard other attorneys complain about it; conversely, I have never heard anyone extol it. Your experience may be different.
If you google “free legal research engines,” you will pull up a wealth of links to various services, and you may wish to sample them.
We judges use Westlaw, and in the past have used Lexis when it offered AOC a better deal. Both are good, and produce useful, topical research results. Here in Lauderdale County the supervisors purportedly provide Westlaw as a service to the bar and jailhouse lawyers. The only problem is that access is limited to one person hired by the Sups to do the job, so lawyers are at the mercy of a non-lawyer to do their legal research for them. That’s an entirely unsatisfactory arrangement that could invite malpractice claims, and I don’t know of a single lawyer — other than the writ-writers behind bars — who avails himself or herself of this program. It might be possible for a county to provide a monthly subscription at a terminal for lawyers who pay a set fee for X amount of time, and then are billed for any overage.
No matter what your solution, you have got to have the ability to do legal research if you care to survive any amount of time as a lawyer.
— Thanks to Attorney Marcus Evans for the links to info about Google Scholar
R.I.P. Chancellor Ed Prisock
July 31, 2015 § 1 Comment
Retired Chancellor Ed Prisock of Louisville died Thursday, July 30, 2015.
The Excusable Neglect Trap
July 30, 2015 § 2 Comments
I think it’s fair to say that it’s unwise for an attorney to place much reliance on the concept of excusable neglect to extract himself or herself from the trouble one encounters due to failure to act.
MRAP 4 provides that notice of an appeal must be filed within thirty days of entry of the order or judgment appealed from. The trial judge, however, may extend that time, even ex parte, for good cause if the motion is filed within the 30-day time limit. MRAP 4(a) also provides that “Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall only be granted upon a showing of excusable neglect.” [Emphasis added]
That rule came into play in a recent COA case.
An emotional family land dispute that had taken years to litigate finally resulted in a judgment against David and Jené Nunnery on June 20, 2012. Their attorney at trial withdrew after the trial ended, but before entry of the judgment. A replacement attorney filed a R59 motion on June 29, 2012, but did not set it for hearing. More than a year later, the chancery clerk brought it to the attention of the chancellor that the motion was pending and unresolved, and the chancellor overruled the motion sua sponte by order entered October 1, 2013. On November 9, 2013, the Nunnerys’ attorney filed a motion to extend the time to appeal. His motion spelled out his rationale:
a close family member of the undersigned attorney was involved in a serious car wreck in South Carolina, was in a comma [sic] in intensive care, underwent surgical procedures, and was placed on life support. These unfortunate events extended for a period of four (4) weeks requiring the undersigned attorney’s regular attendance at the Greenville, South Carolina hospital. On November 9, 2013, the family removed life support[,] and on November 16[, 2013,] the funeral was held.
The attorney explained at hearing that the relative was his brother, and he was required to spend many hours at the young man’s bedside and in counselling family members about end-of-life decisions.
In overruling the motion, the chancellor noted that the brother’s accident happened when there were still eight days remaining within which to file an appeal. She found it more significant that the R59 motion had never been prosecuted, and that the failure of the Nunnerys to move forward with their post-trial motion and appeal had already unduly delayed the finality of the judgment, and further delay would only prejudice the prevailing parties.
In Estate of Nunnery: Nunnery v. Nunnery, handed down by the COA July 21, 2015, the COA affirmed, finding that the chancellor did not abuse her discretion in denying the request for the extension. The majority opinion emphasized that the attorney could have filed the notice of appeal in the 22 days that had elapsed before the accident. Judge Maxwell’s specially concurring opinion made the valid point that the attorney may have had good reason for not filing the notice within the 22 days; it may have been that he could not get authorization from his clients, or maybe he had not yet been paid to file the appeal. Judge Maxwell pointed out that an appeal filed on the 30th day is as legitimate as one filed earlier. He would have relied more on the prejudice to the opposing party that, as he put it, trumped the unfortunate circumstances that prompted the motion.
As an aside, what should you do if the deadline is about to expire and you still have no retainer and no clear instructions from your client? One possibility is to ask the court for an extension within the 30-day window, which will likely be easily granted. Another is to file a notice of appeal without your client’s blessing. You will have to front the filing fee, but you will have bought some more time. It’s a strategy that can backfire, though, because your client can argue that you are now in the case to the end, paid or not. I did that once for a client who was having trouble gathering the money to cover court and transcription costs and attorney fees. It turned out okay, though, when the client did retain me shortly thereafter.
The Nunnery case seems like a harsh outcome, but the concept of excusable neglect is not all about the lawyer claiming it. It’s also about the others who will be affected by the court’s ruling. A lawyer asked me to “be fair” to his client in a case recently, and I assured him that I would, but that I also had to be fair to the other side at the same time. Sometimes the result of being fair can cut like a knife.
I call the concept of excusable neglect a “trap,” because it can lull you into a false sense of security that if you don’t tend to your business the court will rescue you. It should go without saying that asking the court to excuse your neglect should only be a last-ditch tactic. Better to watch those deadlines and act promptly.
Demoting General Relief
July 28, 2015 § 5 Comments
One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.
And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.
Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:
- A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
- Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.
The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.
In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:
“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”
No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.
Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.
Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:
“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”
Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.
I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.
It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.
When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.
An Occasion When Adjudication is not Res Judicata
July 27, 2015 § Leave a comment
Does the judgment closing a conservatorship (or guardianship, for that matter) bar a subsequent action to set aside transactions that could have been adjudicated within the conservatorship while it was open?
That was the question taken up by the MSSC in the case of Estate of White: White v. White, decided December 11, 2014.
In that case, Charles William White (Bill) and his son, Tommy, were partners in a convenience store operation. In 2000, Bill married Anita White. Tommy bought out Bill in 2005, and paid his father cash for his interest, but the two never exchanged deeds necessary to finalize the buyout.
By 2009, Bill was in need of a conservatorship due to declining health. Anita and Tommy disagreed strongly over the course of Bill’s care; Anita wanted to make him comfortable so he could die with dignity, and Tommy insisted on life-sustaining care. Tommy used a power of attorney (POA) to transfer Bill’s interest in the partnership properties to himself to complete the transfer.
Tommy filed a petition to be appointed conservator of his father. Anita filed a counterclaim asking that she be appointed instead, and she asked the court to set aside any and all transactions by which Tommy transferred interest in his father’s assets to himself using Bill’s POA.
The chancellor found a conservatorship to be in Bill’s best interest, but rather than appointing either Anita or Tommy, he appointed a third party.
When Bill died in 2009, the conservator petitioned to the court to be discharged and to distribute the assets of the conservatorship to Bill’s estate. Both Anita and Tommy agreed to an order to that effect. The order waived accounting, but did not mention Anita’s claim to set aside the POA transactions.
In 2010, Anita filed a complaint to set aside the POA transactions. Both parties filed motions for summary judgment. The court sustained Tommy’s motion, ruling that the order closing the conservatorship barred Anita’s subsequent action, because she had brought the action within the conservatorship, which had been closed.
Anita appealed, and the COA affirmed, finding that the four identities of res judicata were present, and that, therefore, her action was barred.
The MSSC granted cert, and reversed both the COA and the chancellor. Here is how Justice Dickinson addressed the issue for a unanimous court (Justice Lamar not participating):
¶9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.
¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.
¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.
¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.
¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.
[NOTE: Authority supporting the above language was set out in footnotes that were omitted in this post because they are too tedious to copy and paste. You can click on the link above to access the full opinion.]
You can take away from this that an order or judgment closing a conservatorship or guardianship does not extinguish the claims that were raised during the time that it was opened.
What would have been the outcome if Anita had not filed her claim to set aside the transactions while the conservatorship was open? My thinking without research is that she would have had a viable claim if she filed within the statute of limitations. What do you think?
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