VANISHING ATTORNEY’S FEES IN A PATERNITY ACTION

March 21, 2013 § 2 Comments

Tash Solangi filed suit against Kasey Croney to establish paternity and to obtain custody of the parties’ minor child, Caleb. Much of the trial was devoted to the parties’ custody conflict. At the conclusion of the hearing, the court awarded Kasey physical custody, gave the parties joint legal custody, changed the child’s name, and assessed child support. The chancellor also awarded Kasey a judgment in the sum of $14,000 in attorney’s fees. Tash appealed.

Much of the COA’s opinion in Solangi v. Croney, handed down March 12, 2013, addresses the chancellor’s findings on the Albright factors, which the COA did not disturb. It is the court’s handling of the attorney’s fee issue to which we turn out attention. Judge Fair’s opinion states:

¶28. The chancellor awarded Kacey approximately $14,000 in attorney’s fees and costs. The award was based on Mississippi Code Annotated section 93-9-45 (Rev. 2004), which provides that the defendant in successful paternity actions shall pay costs and attorney’s fees. There are two problems with this award. The first is that the trial from which the award largely derives was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings. The second problem is more fundamental: the statute states that costs and fees shall be assessed against the defendant. Given that Kacey was the defendant, section 93-9-45 does not authorize an award of costs and fees against Tash.

¶29. We recognize that the issue of attorney’s fees in domestic cases is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Therefore we must also consider the possibility that the award can be justified under the McKee factors. However, that would require that Kacey be unable to pay her own fees. See Dunaway v. Dunaway, 749 So. 2d 1112, 1120 (¶20) (Miss. Ct. App. 1999). No such finding was made by the chancellor, nor would the record support it given that Kacey and Tash were of similar means, with Kacey earning approximately $72,000 per year.

¶30. We conclude that the award of fees and costs to Kacey is unsupported by the record and must be reversed and rendered.

Two points: (1) if you rely solely on the paternity (parentage) statute for authority to award an attorney’s fee, you’d better be representing the plaintiff; and (2) if the case is not for contempt, you must prove inability to pay. and although Judge Fair does not mention it here, he has said recently in another opinion, that in every case you should put on proof of the Mckee factors; otherwise there is nothing in the record to show how the chancellor arrived at a decision that the dollar amount awarded was reasonable.

And another point: I would have offered proof of how much time was devoted to the custody action and how much was devoted to the paternity action. That way, if the judge finds only part allowable, she has a record on which to base a partial award.

If you will click on that category search button up there on the right side of the page and again click on “Attorney’s Fees,” you will find a slew of posts on proving attorney’s fees and protecting the award on appeal.

FATHER FOREVER

October 4, 2011 § 7 Comments

I posted here about the new statutory procedure to disestablish paternity.

One of the interesting aspects of the new code section is that it enumerates the reasons that would disqualify a father from attempting to prove he is not the father.

The flip side of the coin, then, is that these are the bases that conclusively establish paternity and preclude the mother or anyone else from denying his parentage. From the statute, the man is the father if he did any one of the following:

(a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father;

(b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact;

(c) signed a stipulated agreement of paternity that has been approved by order of the court;

(d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father;

(e) had been named as legal father or ordered to pay support after he declined to undergo genetic testing; or

(f) failed to appear for a genetic testing draw pursuant to a valid court order.

I am not aware of any other place where these bases for paternity have before been listed in such a handy form.

DISESTABLISHING PARENTAGE, STEP BY STEP

September 20, 2011 § 5 Comments

As I posted here before, the legislature has adopted a procedure to disestablish parentage (paternity) in light of Williams v. Williams, 843 So.2d 720 (Miss. 2003), and its progeny, which hold that a man who is determined by DNA testing not to be the father of a child should not continue to be responsible for the support of that child.

The new code section, MCA § 93-9-10, went into effect July 1, 2011.  The very first sentence of the statute states that “This section establishes the circumstances under which a legal father may disestablish paternity and terminate child support when the father is not the biological father of the child.” In my opinion, this code section is now the exclusive remedy for a father in these circumstances. Any proceeding such as a petition to remove the father from the birth certificate, or a joint petition to disestablish paternity, or a modification pleading that does not meet the requirements of the statute will be ineffective.

You may well ask, “But if the father and mother agree, what is the harm? Why not simply approve their agreement?” First of all, there are the welfare and rights of the child to consider. See, Kelly v. Day, 965 So.2d 749 (Miss. App. 2007).  And secondly, if the procedure is ineffective, the child will have a later cause of action for support, making the whole earlier procedure a waste of time.

Before I step through the statute with you, please let me urge you to read the statute. I swear, it won’t take more than five minutes. If you’re going to advise clients about this, you need to be familiar with what it says.

So here is the procedure, step by step (statutory requirements in bold, my comments in regular font):

  1. The father must file a petition in the court having jurisdiction over the child support obligation. This means that if the county court, or chancery court in another county, has entered a child support order, the petition must be filed in that court.
  2. Process and a copy of the petition must be served on the other parent or guardian; if DHS is or has been a party to the paternity action or collection of child support, the Attorney General of the State of Mississippi must be served with process. In my opinion, since this action is under the chapter dealing with parentage (bastardy), 30-day process would be required pursuant to MRCP 81 (d)(1).
  3. The petition must include: (a) an affidavit executed by the petitioner that he or she (there is nothing in the statute that says that the mother is precluded from filing a petition) has newly-discovered evidence since the paternity determination relating to parentage of the child, and (b) the results of a genetic or other scientific parentage test administered within one year of the filing of the petition excluding the legal father as biological father of the child or an affidavit executed by the petitioner that he did not have access to the child for testing before the filing of the petition; in the latter case, the petitioner may request that the mother (if available), child and father submit to such testing.
  4. The court shall grant the relief on a properly filed petition if the court finds all of the following: (a) There is newly-discovered evidence as averred; (b) the scientific testing was properly conducted; (c) the legal father has not adopted the child; (d) the child was not conceived by artificial insemination while the legal father and mother were married; (e) the legal father did not prevent the biological father from asserting his parental rights with respect to the child. I recommend that your petition include allegations (a) through (e). Your client is swearing that all of these statements are true, and you are vouching under MRCP 11 (a) that the pleading has “good ground to support it.” And make sure your client reads it before signing. He is swearing all of this is true, andd if he balks or hems and haws, you might want to think about going back to the drawing board.
  5. The court shall not set aside the paternity determination or child support order if the court finds that the legal father did any of the following: (a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father; (b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact; (c) signed a stipulated agreement of paternity that has been approved by order of the court; (d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father; (e) been named as legal father or ordered to pay support after he declined to undergo genetic testing; or (f) failed to appear for a genetic testing draw pursuant to a valid court order. Same advice here about incorporating these as allegations in your petition. Make your client swear that he has not done any of the foregoing. The rationale above applies here.
  6. If the petitioner does not make the required showing, the court shall deny the petition.
  7. Relief is limited to prospective (future) child support, past-due child support payments, termination of parental rights, custody and visitation. The statute does not create a cause of action to recover child support paid before filing of the petition. The statutory procedure can not be used to litigate previously-paid child support. It can be used to address past-due child support, parental rights, custody and visitation.
  8. The court may not suspend the child support obligation while the petition is pending, although the court may order that such payments may be held by the court or DHS pending a final determination. My suggestion is to plead for the court or DHS to hold the child support funds pending litigation, if that is what your client wants. If you don’t specifically ask in your petition for that relief, you likely will not get it.
  9. The party requesting genetic testing shall pay its fees. There is no provision in the statute for the court to tax the fees other than to the party who requests it.
  10. The usual authority of the court on motion or its own motion to order the parties to submit to genetic testing applies.
  11. The unsuccessful petitioner shall be assessed with court costs, genetic testing fees and reasonable attorney’s fees. Here’s the reason why I suggested above that you specifically plead all of those qualifying and possibly disqualifying facts and make your client read carefully before signing. Clients sometimes will lead you to believe that they have a case, and will omit some important detail, like the execution of that acknowledgment of paternity. They think they can pull a fast one on the court, or that it somehow will slip by unnoticed. The result of failure for the petitioner is being assessed with some significant expenses. The result for you is egg on your face and slipping a notch in the court’s regard of your own credibility.

This statute should go a long way toward eliminating the welter of approaches that lawyers have taken to address the disestablishment of paternity. Now there is a single statutory provision. Read the statute, follow it, and you might accomplish something for your client.

NEW GUIDELINES FOR GENETIC TESTING TO DISESTABLISH PARENTAGE

May 31, 2011 § 1 Comment

Ever since the supreme court’s ruling in Williams v. Williams, 843 So.2d 720 (Miss. 2003), that a man under a support order who is proven by DNA testing not to be the father of the child can not be required to continue to support the child, the procedure to be followed has been anything but clear.  Up to now, it has been up to each chancellor or county judge to find a way.

Effective July 1, 2011, the law on this point is clarified and specified.  The legislature has created a new MCA § 93-9-10, and amended 93-9-9, 93-9-28, 93-9-21, and 93-11-71, to spell out a uniform, orderly process.  Here are the highlights:

  • If parentage was established through a court order, and the father had been offered genetic testing and declined, he will not be granted the relief of disestablishment of parentage.
  • If parentage was established by the father signing the birth certificate, he will have one year within which to request genetic testing.  After that, he can not contest parentage except on a showing of fraud, duress or material mistake of fact.  Current law allows only 60 days to contest parentage.
  • If parentage was established because the parents were married at the time of the birth, the legal father will be allowed to petition for genetic testing so long as he did not continue to hold himself out as the father after learning that he was not the father, or if he prevented the actual biological father from asserting his parental rights.  This last provision appears to reflect and cover the situation addressed in the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which was discussed in a previous post.

This is intended only to be a general summary, so you should read the actual provisions when they appear in your legislative advance sheets.

BYE-BYE, BASTARDY; HELLO PARENTAGE

May 19, 2011 § Leave a comment

It’s official.  The 19th-century term “bastardy” that appeared in our paternity laws is banished from the statutes, effective March 14, 2011, by edict of the legislature.  Bastardy bows out.

The archaic term will be replaced with the concept of parentage, which is an improvement over the concept of paternity.  All future printings of the code will reflect the change.

In the recent COA case Miller v. Mills, decided May 3, 2011, Judge Maxwell used the term parentage in the context of a paternity action that had been filed in Louisiana, the judgment from which was sought to be enrolled and enforced in Mississippi: “Therefore, Ryan’s filing of a petition to establish parentage, custody, and visitation initiated a ‘child custody proceeding.’”  ¶ 9.  The opinion replaces the term paternity with parentage except where a specific statutory provision is mentioned.  The signal is that the new term is parentage, and that bastardy, paternity and filiation are fading away.

If the statutory language is segueing into the 21st century, wouldn’t it be a good idea for your pleadings to do likewise? “Complaint to Establish Parentage.”  Has a nice ring to it, doesn’t it?

THE PARENT TRAP

September 28, 2010 § 5 Comments

We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.”  In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support.  The Williams court, however, added this caveat:

“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.”  [Emphasis added] 

Fast forward to 2009.

In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.

Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his.  Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce.  Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.

Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.

The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.

On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity.  He also pointed out that the home test was not legally binding, while the court-ordered test was.

The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.

Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him.  In Williams, the exact opposite of those facts existed.

The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified.  He knew the child was not his at the time, and that circumstance had not changed.

Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not.  Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.

If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases.  If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.

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