A Due Process Wrinkle for Child Support
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
THE INS AND OUTS OF CONTEMPT
September 26, 2012 § 7 Comments
Last week’s Corr v. State decision from the MSSC is a reminder that there are some intricacies to contempt that we should all be aware of as we go about our business in chancery court.
Contempt can be either civil, or criminal, or a combination of both.
- Civil contempt is for the benefit of the complaining party, and its purpose is remedial. An example is where the respondent owes child support and is jailed until he can come up with what he owes. The remedy is coercive and is intended to produce compliance. The burden of proof is by a preponderance of evidence.
- Criminal contempt is intended to vindicate the authority of the court. The sentence is punitive.
- The two types of contempt may be used in combination, as where the court orders the respondent jailed until he pays the amount due, and the court sentences him to thirty days as a punishment for non-compliance.
Civil contempt may be tried on seven days’ notice by Rule 81 summons.
Criminal contempt under Mississippi law may be either direct or indirect. The distinction determines what kind of due process notice is required.
- Direct criminal contempt involves words or actions in the presence of the court that are an affront to the authority or dignity of the court. Conduct such as insulting language or behavior, resistance to the court’s authority, disruption of the proceedings and the like may be treated as direct contempt. The court may act instantly to punish the contemnor because no evidence other than the judge’s own perception is necessary to sustain sanctions. In the alternative, the court may wait until later in the proceedings, at a break or at the end of a hearing, to address the misconduct.
- Indirect, or constructive, criminal contempt is contemptuous conduct that takes place outside the presence of the court which resists the court’s authority and tends to obstruct, interrupt or embarrass the administration of justice.
Direct contempt may be dealt with immediately, summarily, and without further notice to the contemnor. Some authorities suggest that, if the court delays action, the judge should recuse herself if the contempt is based on personal attacks.
In cases of indirect, or constructive, criminal contempt, the defendant: (1) is presumed innocent until proven guilty beyond a reasonable doubt; (2) is entitled to resonable notice of the nature and cause of the accusation; (3) has a right to be heard; (4) has a right to retain counsel; (5) has the right to call and cross-examine witnesses; (6) has the right to an unbiased judge; (7) has the right to a jury trial; and (8) has the right against self-incrimination. Dennis v. Dennis, 824 So.2d 604, 609 (Miss. 2002). If the judge, as in Corr, is substantially involved in the prosecution, as where he is instrumental in initiating the proceeding, or where he acts as prosecutor and judge, he should recuse himself and have the actual contempt hearing conducted by another judge.
When you draft contempt pleadings, give some thought to what it is you are trying to accomplish. If all you are trying to do is to get the ex-husband to pay his child support, civil contempt may do the job for you. It only requires a preponderance of evidence, as opposed to the heavier burden for criminal contempt. If you insist on criminal contempt, look carefully at Dennis and its requirements. Do you really want to strap them on? Are they really in your client’s best interest? When you insist on criminal contempt, you are affording the defendant Fifth Amendment self-incrimination protection, the higher burden of proof, and even right to a jury trial (this applies in cases where the aggregation of penalties would result in a sentence that would require Sixth Amendment protection. McGowan v. State, 258 So.2d 810, 802 (Miss. 1972); Purvis v. Purvis, 657 So.2d 794, 798 (Miss. 1995); Walls v. Spell, 722 so.2d 566, 574 (Miss. 1998)).
If you simply can not resist the urge to rattle the incarceration saber, be sure to acquaint yourself with the US Supreme Court decision in Turner v. Rogers.
ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION
November 21, 2011 § 1 Comment
We’ve talked here before about the proper procedure to withdraw from representing a client.
It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.
The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.
On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.
On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.
Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.
The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”
The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:
” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”
In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.
The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.
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