Desertion and its Proof

March 18, 2020 § Leave a comment

The COA’s decision in a recent case is a reminder that overcoming the natural-parent presumption requires clear and convincing evidence.

Judge Tindell wrote the 9-1 opinion that reversed the trial court ruling in Owens v. Owens, handed down December 17, 2019:

¶6. In child-custody cases, the best interest of the child is the paramount concern. Burge v. Burge, 223 So. 3d 888, 899 (¶37) (Miss. Ct. App. 2017). “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (¶8) (Miss. 2012)). Thus, a “third party must first clearly rebut the natural-parent presumption or preference” to receive custody. Smith, 97 So. 3d at 46 (¶8). As our caselaw establishes:

[T]he natural-parent presumption may only be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.

In re Waites, 152 So. 3d 306, 311 (¶14) (Miss. 2014) (internal quotation marks omitted). Where a third party successfully rebuts the presumption, the chancellor must conduct an Albright analysis to determine if third-party custody serves the child’s best interest. Smith, 97 So. 3d at 46 (¶8).

¶7. Here, the chancellor concluded that clear and convincing evidence demonstrated Farrah had deserted Tiffany. “Desertion is defined as for[]saking one’s duty as well as a breaking away from or breaking off associations with some matter involving a legal or moral obligation or some object of loyalty . . . .” Neely, 194 So. 3d at 156 (¶21) (internal quotation mark omitted); see also Smith, 97 So. 3d at 48 (¶16) (explaining that desertion occurs when one forsakes “a person, institution, cause, etc., having a moral or legal claim upon one” or “forsake[s] one’s duty, one’s post[,] or one’s party”).

¶8. In Smith, the Mississippi Supreme Court considered a chancellor’s award of primary physical custody of a minor boy to his maternal grandmother and step-grandfather. Smith, 97 So. 3d at 44 (¶1). The Smith court concluded the record supported the chancellor’s finding that the mother’s desertion of her son had overcome the natural-parent presumption. Id. at 49 (¶17). Following the son’s birth in June 2003, he and his mother lived with the maternal grandparents in Mississippi. Id. at 45 (¶3). Over the next three years, the mother attended college. Id. The mother “sometimes visited” her son on weekends during the first three years of his life, but her visits eventually grew more infrequent. Id. In April 2006, the mother got married and moved to Washington D.C. to live with her new husband. Id. About a month later, the son also moved to Washington D.C. to live with his mother and her new husband. Id. In June 2006, however, the mother and her new husband separated, and the son returned to Mississippi. Id. Over the next few months, the son spent time in both Washington D.C. and Mississippi until he permanently returned to Mississippi in November 2006. Id. In 2007, the mother “sporadically” visited her son in Mississippi, and in April or May 2007, she gave the grandparents medical guardianship over her son. Id. In 2008, the mother’s visits with her son continued to grow “more infrequent,” and in March 2009, she moved to Arizona with a man she later married. Id. In granting third-party custody to the grandparents, the chancellor in Smith stated that the mother “had ‘failed to exercise her parental rights and fulfill her parental responsibilities’ by her ‘long and continuous absences’ from . . . [her son]. Consequently, the Smiths [(the grandparents)] had raised . . . [the grandson] virtually his entire life . . . .” Id. at 46 (¶4).

¶9. Citing Smith, the chancellor in the present case found that Farrah’s actions also constituted desertion. Specifically, the chancellor here stated:

Farrah’s long and continuous absences, especially in the context of a baby as young as the one in the instant case, along with her [(Farrah’s)] failure to exercise her parental rights, failure to financially support and care for the child[,] and her failure to fulfill her parental responsibilities, caused the child’s grandparents [(the Owenses)] to step in as primary caretakers.

¶10. Upon review, however, we conclude that the record in the present case fails to support a finding of desertion by clear and convincing evidence. At the time the Owenses filed their February 9, 2017 emergency petition for guardianship, Tiffany was only four months old and
had only lived in the Owenses’ home for two months. In addition, evidence reflected that until the Owenses received temporary custody of Tiffany, Farrah had been constantly present in her daughter’s life and had consistently contributed to Tiffany’s care and well being.

¶11. When the chancellor held the two-day hearing in November 2017 on the Owenses’ guardianship petition, Tiffany was one year old. Farrah testified about how often she had visited her daughter since her parents had received custody of Tiffany eight months earlier. Farrah stated that her parents initially allowed her to move back to their house following the February 2017 court hearing until they kicked her out a few weeks later. After leaving her parents’ home, Farrah stated that she visited with Tiffany around twenty times before she again moved back into her parents’ home in August 2017. During the time she lived with her parents in August 2017, Farrah testified that she was able to see Tiffany on a daily basis and that she “took care of Tiffany the whole time . . . [she] was there . . . .” According to Farrah, she was the one who mostly “fed . . . [Tiffany], bathed her, put her to bed, [and] fixed her breakfast.”

¶12. Farrah stated that her parents once again kicked her out of their home in September 2017 after they learned she had hired an attorney to represent her in the guardianship proceedings. Farrah testified that she still tried to visit Tiffany but that her parents refused to let her visit their house during weekdays while her father was at work. As a result, Farrah stated that she only visited with Tiffany once in the month leading up to the November 2017 hearing. Farrah also stated that she constantly tried to call and text her parents to request phone visits with Tiffany and pictures and videos of Tiffany. Farrah claimed, however, that her parents usually failed to answer her phone calls and text messages.

¶13. Farrah also testified that in September 2017 she obtained a job at a produce and firewood business. Farrah stated that she worked at the business the first part of the day and then babysat her bosses’ four children in the afternoons. Farrah testified that she had secured housing for herself and Tiffany and that she had just finished decorating Tiffany’s bedroom. If granted custody of Tiffany, Farrah testified that her employers had agreed to allow her to take Tiffany to work with her.

¶14. Unlike in Smith, the present record fails to show that Farrah forsook her duty to Tiffany through “long and continuous absences,” a “failure to exercise her parental rights,” or a “failure to fulfill her parental responsibilities.” See Smith, 97 So. 3d at 48 (¶16). Evidence instead reflected that Farrah consistently was or attempted to be present over the first year of Tiffany’s life. The record also contained evidence that during the periods when Farrah lived under the same roof as Tiffany,she helped to care for Tiffany and to provide for Tiffany’s needs. And during the times when she did not live under the same roof as Tiffany, Farrah testified about her repeated attempts to visit with her daughter. In addition, by the time of the November hearing, Farrah had not only obtained a job to financially support herself and Tiffany but had also obtained housing and arranged childcare. Based on such evidence, we conclude the chancellor manifestly erred by finding that the Owenses rebutted the natural-parent presumption with clear and convincing proof of desertion.

The Nexus Between Separate Maintenance and Desertion

December 10, 2013 § Leave a comment

Brenda Reeves left her husband Howard in February, 2008, and, soon after, Howard sued her for separate maintenance. Brenda responded with a motion to dismiss, and, after a hearing, the chancellor found that Howard’s abuse of alcohol, and his physical and emotional abuse of Brenda, were the proximate causes of her departure. He dismissed Howard’s complaint for separate maintenance following the trial, in February, 2010.

In March, 2010, Howard filed a Complaint for Divorce on the ground of desertion, which he shortly after dismissed.

In April, 2011, Howard filed another Complaint for Divorce on the ground of desertion. Brenda again filed a motion to dismiss, which the court denied. At trial in February, 2012, Brenda argued that Howard’s complaint should be dismissed because, under Mississippi law, if the plaintiff had previously filed an unsuccessful separate maintenance action, he must prove that he made a good-faith offer to reconcile with his spouse at least one year prior to filing the divorce complaint. The chancellor ruled that Howard had not submitted adequate proof to meet his burden, and he dismissed Howard’s complaint. Not at all happy with the outcome, Howard appealed.   

In the COA case of Reeves v. Reeves, decided December 3, 2013, the COA affirmed the trial judge’s ruling. This is case law of which you need to be aware. Here is how the COA, by Judge Ishee for a unanimous court, addressed it:

¶8. Howard asserts the chancery court erred in finding that he failed to meet the one-year requirement for seeking a divorce on the ground of desertion. As such, Howard also asserts that the chancery court erred in failing to grant him a desertion-based divorce. The supreme court has addressed divorce cases such as the instant case wherein a separate maintenance action has been adjudicated prior to the filing for divorce on the ground of desertion. See Day v. Day, 501 So. 2d 353, 354 (Miss. 1987). In Day, the supreme court summarized desertion as follows:

If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.

Id. at 356 (citation omitted).

¶9. However, the determination of whether desertion exists is viewed differently in light of an adjudicated separate-maintenance order. Id. (citation omitted). The supreme court noted that if a plaintiff seeking divorce can show that, “since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, [then] the defendant is now a deserter and the plaintiff is entitled to a divorce for desertion.” Id. (citation omitted). The proof must show that the plaintiff was “honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.” Id. at 357 (quoting Rylee v. Rylee, 142 Miss. 832, 840-14, 108 So. 161, 163 (1926)).

¶10. The evidence before us fails to prove that Howard made a good-faith reconciliation offer at least one year prior to April 11, 2011, as required by Day and Rylee. Howard testified at trial that he called Brenda once a month asking to reconcile. Brenda disputes this fact and further asserts that Howard’s occasional generic request to reconcile did not include a promise that he would seek rehabilitation for his alcohol abuse, nor did his requests include repentance for his prior abusive actions toward Brenda or promises that the abuse would not occur again. The evidence shows that the only good-faith reconciliation offer acknowledged by both parties was made on or about June 7, 2011 — approximately two months after Howard filed his complaint for divorce on the ground of desertion.

¶11. This was reflected in the chancellor’s following comments made during his ruling:

It seems to me that after a separate[-]maintenance proceeding, in order for the time to start ticking under Day, it is incumbent upon Mr. Reeves to make a good[-]faith offer. . . . I don’t have proof that I think rises to a preponderance of the evidence to show that Mr. Reeves made an offer for Mrs. Reeves to return home, satisfying whatever concerns she may have had, that would have started the one year running as contemplated by Day. I’m going to decline to talk about the reasonableness or unreasonableness of these post[-]filing offers that have transpired between Mr. and Mrs. Reeves . . . .

We agree with the chancellor. The law is clear that, under these circumstances, Howard was required to make a good-faith reconciliation offer at least one year prior to filing a complaint for divorce on the ground of desertion. The evidence simply does not show that he did so. As such, the chancellor did not err in his determination that Howard failed to meet the one year requirement at issue. This issue is dispositive of Howard’s second claim on appeal that the chancery court erred in failing to grant him a divorce on the ground of desertion. These issues are meritless.

Two observations:

  • Notice in ¶10 that the COA finds from the record that Howard had neither (1) undergone rehabilitation for his alcohol abuse, nor (2) repented for his prior conduct. This is language that you can use when you have a separate maintenance case in which the payer claims to have had his offers to reconcile rejected. It seems that what the COA is saying is that the offeror must prove measures to reform, and must make amends with the offended party. “Generic” offers to return home won’t cut it.
  • Cases of this type were more common before irreconcilable differences divorces by consent became available. Every now and again one runs into a pleading and procedural scenario like the Reeves case presented, and you have to be prepared to meet it. Remember that it takes more to prove desertion than mere separation without fault for a year or more. Since a good-faith offer of reconciliation within the one-year period will stop its running, the offended party must prove that she or he would have been willing to reconcile within that first year if a bona fide offer to do so had been made, but none was made. 

THE BENEFIT OF A WHOLESOME AND STABLE ENVIRONMENT

November 28, 2012 § Leave a comment

MCA 93-5-24(1)(e)(i) provides that, if the court finds both parents have abandoned or deserted a child, it may award physical and legal custody to ” … [t]he person in whose home the child has been living in a whoesome and stable environment.” And the case of Lucas v. Hendrix, 92 So.3d 699, 705-6 (Miss. App. 2012) says that once the chancellor has found that both parents have deserted the child, custody may be awarded per the statute without first addressing the Albright factors.

Those little gems are in ¶ 17 of the decision in Hamilton v. Houston, decided by the COA November 6, 2012.

In that case, the chancellor found that both of the natural parents had deserted the child. Once he made that finding, the chancellor did go through an Albright analysis, the result of which was to award custody of a minor child to the paternal grandparents over objection of the mother. The COA upheld the chancellor’s decision, and several points raised in Judge Maxwell’s opinion are ones you should file away for future use:

  • Desertion involves forsaking a person to whom one is legally obligated, or forsaking or avoiding one’s duty to that person. In re Leverock & Hamby, 23 So.3d 424, 429-30 (Miss. 2009).
  • Abandonment is relinquishment of a right or claim (¶ 17).
  • A finding of either abandonment or desertion by clear and convincing evidence is enough to rebut the natural parent presumption. In re Smith, 97 So.3d 424, 429-30 (Miss. 2012).
  • In this case, although both parents paid some support for the child, they both admitted that the money they paid was not sufficient to support him.
  • An unusual feature of this case was that the grandparents, who were awarded custody, did not file their own pleadings, but merely joined in their son’s (father of the minor child) petition for custody. The COA held that prayer in the son’s petition that he be awarded custody was adequate to empower the judge to adjudicate the issue in any way that was in the best interest of the child.

The fact pattern in this case should be unhappily familiar to any lawyer who has done much family law in the past several years. It seems that grandparents are more frequently becoming surrogate parents, and chancellors are more often called upon in these cases to be arbiters of the child’s best interest.

It appears to me that these cases are trending toward giving more weight to the quality of the parental relationship and less to the quantity. As in this decision, a parent who, for instance, provides some financial support but forsakes the parental duties of emotional support, presence, attention, and other parenting responsibilities, is at risk for a finding of desertion.

LIMIT: ONE DIVORCE PER CUSTOMER

March 12, 2012 § Leave a comment

Lane and Cristal Kimbrough appeared before a special chancellor to present their case for divorce. The case was apparently bifurcated, with the court hearing first only the divorce grounds, and the remaining issues to be tried later.

As for divorce grounds, Cristal charged Lane with habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed that Cristal had been guilty of habitual cruel and inhuman treatment and adultery.

At trial, after having heard the proof only on the grounds for divorce, the special chancellor dismissed all of the pled grounds and held that the parties were divorced “one from the other on the grounds of desertion.” The basis for his ruling was that both parties had recognized that the marriage was broken by virtue of having filed for divorce against each other, and they had in essence lived separate and apart within the same residence for more than two years, “abandoning the marital relationship.”

Both parties appealed.

In Kimbrough v. Kimbrough, decided by the COA February 28, 2012, the COA reversed and remanded, saying that “The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error.” Judge Russell, writing for the majority, stated:

“The Mississippi Supreme Court has held that a chancery court may not grant a divorce based on each party’s fault-based grounds. Hyer v. Hyer, 636 So. 2d 381, 383-84 (Miss. 1994). This Court has stated: “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983 (¶23) (Miss.App. 2000).

The court reversed and vacated the trial court’s judgment, declining to address any other issues.

Judge Griffis dissented for the reason that the COA should not have accepted and ruled on the appeal at all, since the trial court’s judgment disposed of less than all the issues pending (i.e., custody, child support, equitable distribution, etc.). He agreed that, if the COA should keep the appeal, the chancellor’s grant of a mutual divorce should be reversed, but he would have held that Cristal should have been granted a divorce based on the record.

Quite often lawyers present agreed Irreconcilable Differences divorce judgments granting both parties a divorce. That does not fly in the face of Hyer and Garriga because Irreconcilable Differences is not a fault-based ground.

In fault-based cases, however, the court can grant only one divorce per case. Mutual divorces are forbidden.

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