Parental Actions Against the Best Interest of the Child and Remand

November 21, 2017 § Leave a comment

In Darnell v. Darnell, 167 So.3d 195, 198 (Miss. 2014) (Darnell I), the MSSC remanded the case to the chancellor with directions to consider two statements of a minor child that he had excluded in the trial.

The chancellor had awarded the father, Duff Darnell, custody of the child based largely on conduct of the mother, Carla Darnell. After remand, the judge addressed the statements of the child and made a detailed Albright analysis, after which he again awarded custody to Duff. Carla appealed, and the MSSC affirmed in Darnell v. Darnell, decided October 26, 2017.

The court’s opinion addresses two important issues: parental misconduct toward the other parent; and what the judge is required to consider on remand.

On parental misconduct, the chancellor spelled out what he found to be Carla’s misconduct:

… the actions of the mother, Carla Darnell, taking visitation away from the father, filing charges with the military against the father, accusing the father of being a child molester, and disparaging the father in the small community where the family resided, coupled with her telling the child that the child should tell everybody that he wants to stay with her and not the father adversely impacts the minor child. Darnell II, at ¶7.

The MSSC, in a unanimous opinion by Justice Randolph, rejected Carla’s argument that the chancellor had failed to consider the child’s statements in making his findings:

¶7. That argument is without merit, for the chancellor entered a detailed, twenty-nine page amended final judgment. He addressed the statements made by C.D. to his teacher, Dana Walker, and principal, Machelle Dyess, and Dyess’s testimony regarding those statements. He also considered those statements in conjunction with Dr. Scott Benton’s testimony. He found that no witness who had knowledge of C.D. making the two specific statements testified that C.D. actually had been abused. No evidence was presented that any sexual abuse occurred. The chancellor stated in his order that he considered the three reports of the GAL, the exhibits, and testimony of the parties and witnesses at trial. He found [the conduct set out above].

¶8. Based on the record, the chancellor considered the statements and found that those statements did not change the outcome of his award of custody to Duff. “[T]he chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Carambat v. Carambat, 72 So. 3d 505, 510 (Miss. 2011). The chancellor’s findings are supported by substantial evidence; thus he did not manifestly err in that regard.

The takeaway here on this issue is twofold:

(1)  The kind of conduct found by the chancellor is a combination lethal to your client’s claim for custody. You should not come to court with a similar set of facts in the expectation that the judge will not see your client in an unfavorable light.

(2)  The chancellor is the finder of fact and assessor of credibility, and, if there is substantial evidence in the record to support his or her findings, those findings will stand on appeal.

As for how the chancellor handled the remand, the record shows that he simply revised his original findings, addressing the excluded evidence as the MSSC directed him to do. No hearing was held, and no further evidence was taken. Carla argued on appeal that by not holding a new hearing the chancellor had erred by failing to take into account the new developments and facts pertaining to custody at the time of the remand. The MSSC rejected Carla’s claim:

¶12. On remand, this Court specifically instructed the chancellor to make:

new findings of fact and conclusions of law in which the first two statements made by C.D. to Dyess and Walker are considered as admissible evidence. Because of the additional evidence, the chancellor also should conduct a new Albright analysis showing the reasons for his ruling, and it would be helpful if he specifically stated why he disagreed with the guardian ad litem’s recommendations.

Id. at 210. This Court did not instruct the chancellor to hold a new hearing, change his findings and conclusions, or consider new evidence of C.D.’s current condition.

¶13. Carla, citing Vaughn v. Davis, 36 So. 3d 1261 (Miss. 2010), argues that the general rule for remanded child custody cases requires a chancellor to consider the child’s circumstances at the time of remand, rather than at the time of the previous hearing. However, this Court has never made such a pronouncement. This Court specifically instructed the chancellor in Vaughn to consider the minor’s present circumstances, if the chancellor made a determination of desertion. Id. at 1267. No such instruction was given to today’s chancellor. This issue is without merit.

In other words, the remanding opinion of the appellate court is the law of the case from that point forward. The chancellor is obligated to do only what the appellate court directs him or her to do. In this case, the chancellor simply took the two statements into account in his amended findings of fact and conclusions of law. No further hearing; no new evidence. The Darnell I remand had not directed the chancellor to conduct an new hearing or to consider evidence arising after the initial trial date.

Demarcation Date on Remand

August 24, 2015 § Leave a comment

The date on which the marital assets are assigned a value can make a drastic difference in the ultimate outcome of the equitable distribution. It’s a concept that we’ve touched on here before. In Lowery v. Lowery, 25 So.3d 274, 285-286 (Miss. 2009), the court said:

¶ 27. For purposes of determination of equitable division … the date for determination would be either the date of separation (at the earliest) or the date of divorce (at the latest). “Cases appear to hold that, as a matter of law, property acquired during separation is marital unless a support order has been entered…. However, a few cases suggest that the issue is a question of fact for the chancellor to decide….” Bell on Mississippi Family Law at § 6.02[3][b] n. 58 (citing Stone v. Stone, 824 So.2d 645, 647–48 (Miss.Ct.App.2002); Aron v. Aron, 832 So.2d 1257, 1258–59 (Miss.Ct.App.2002)).

Other cases have suggested that the valuation date can vary according to the assets. In other words, one asset could have one valuation date, and another a different valuation date.

So, is the rule any different when the case is remanded to the trial court for a do-over? Things can change in the lengthy time it takes to complete the appeal process, after all.

That’s what happened in Lewis v. Pagel, handed down by the MSSC on August 13, 2015. Following a trip through the COA, and from there to the MSSC, Drake Lewis and Tonia Pagel (formerly Lewis), found themselves back before the chancellor for a do-over on equitable distribution. The case was remanded for the chancellor to treat certain real properties as non-marital, to re-value a business, and to re-analyze equitable distribution. The chancellor followed the appellate courts’ instructions, using the asset values as of the date of the divorce.

Drake appealed, complaining that the chancellor’s approach skewed the ultimate outcome because values had changed in the time it took to complete the appeal cycle. Justice Chandler addressed his argument this way:

¶27. It is well-established that “an equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994). “[F]airness is the prevailing guideline in marital division.” Lowery v. Lowery, 25 So. 3d 274, 285 (Miss. 2009) (quoting Ferguson, 639 So. 2d at 929). Here, the chancellor’s division of the property was approximately equal. Drake’s argument that he received substantially less than Tonia relies on circumstances that occurred after the divorce judgment. However, the date for determination of equitable distribution is, at the earliest, the date of separation, or, at the latest, the date of divorce. Lowery, 25 So. 3d at 285. Additionally, an order of equitable division is a nonmodifiable judgment. East v. East, 493 So. 2d 927, 931 (Miss. 1986). Therefore, when the Court of Appeals remanded for the chancellor to revisit the equitable distribution, the chancellor properly redetermined the equitable distribution as of the divorce.

When you read the entire Lewis opinion (as I am sure you will), note that the chancellor did consider a post-appeal change in value that favored Drake. Legacy Holdings, LLC, a family business, was valued at the time of the divorce at $1,148,270, but the chancellor found that it had no value at the time of the remand hearing.

Here is a post about a case in which the chancellor’s use of the divorce trial date on remand was affirmed.

It would be a nifty skill for a lawyer to be able to tell the future. None of us in real life, however, has a crystal ball. Still, it’s a good idea to impress on your client that a side effect of an appeal could be that you can win the battle and lose the war. By the time the case descends from the lofty, rarified atmosphere of the appellate courts to ground level, things may have changed drastically in the meantime, resulting in a bounce that does not favor your client. In Lewis, the appeal on the equitable distribution saved Drake some rehabilitative alimony, but cost him $100,000 in lump-sum alimony. That’s going to leave a mark.

A Remand Without a New Trial

December 15, 2014 § Leave a comment

I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.

That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.

In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.

The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:

¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.

Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.

How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.

What has to be Re-addressed in an Equitable Distribution Remand?

August 11, 2014 § Leave a comment

When equitable distribution is reversed and remanded for a do-over, alimony has to be redone also, because the two are inextricably intertwined; as equitable distribution expands, alimony contracts, and vice versa.

But what about child support?

The COA’s decision in Rodrigue v. Rodrigue, handed down July 29, 2014, reminds us that child support and attorney’s fees have to be revisited, as well:

¶47. Deidi argues that the chancellor committed error in the computation of child support and by not awarding her attorney’s fees. As set forth above, in Lauro [v. Lauro, 847 So.2d 843, 850 (¶17) (Miss. 2003)], the Mississippi Supreme Court determined that since the case was remanded for further consideration of equitable division, the chancellor should be instructed “to revisit the awards of alimony and child support after he has properly classified and divided the marital assets.” Lauro, 847 So.2d at 850 (¶17). Thus, since this case has been remanded for further consideration of equitable division of assets and alimony, on remand, the chancellor will have all the tools of marital dissolution available: equitable division, lump-sum alimony, and periodic alimony. Likewise, the chancellor may revisit the awards of child support and attorney’s fees.

I was aware of the language in Lauro that requires the remand court to look not only at equitable distribution, but also at alimony and any child support. I was unaware that the remand also embraced attorney’s fees. It is logical, though, that the judge on remand, after completing a re-analysis of the division of the marital estate, and after the award of alimony and child support, could arrive at a different conclusion about ability to pay attorney’s fees.

An interesting feature of this case is that the chancellor did not treat a private-school debt, apparently for tuition, as a marital debt. It’s pure speculation on my part, but I will bet that stems from the chancellor’s confusion over how exactly to treat private school expenses. It’s a confused area, with cases going every which way. If we need some bright line guidance in an area, private school expenses is one.

Where Do We Go from Here?

June 11, 2014 § 2 Comments

I don’t know about you, but when I practiced I always wondered what to do with a case once it was remanded from the COA or MSSC. Do you start over? What is the effect of the appellate court’s ruling on the case on remand? Can the judge try the case on the record already presented? Can we amend to clear up some of the problems from the initial, unproductive attempt?

 Do we start over?

Not exactly. The ancient law of Mississippi is that a remand restores the parties to the exact position that they occupied at the time of the reversed judgment or decree. Harris v. Newman, 6 Miss. 654 (1841). And where only a portion of the judgment is reversed, the effect is to place the parties in the same posture they were in before entry of that judgment, with the unaffected portions remaining in effect. Lloyd Wood Const. Co., Inc. v. Little, 623 So.2d 968, 972 (Miss.1993).

In a case where the appellate court reversed the granting of a divorce and remanded the case to the trial court, this would mean that the court would start from before entry of the reversed judgment, with the pleadings as they were at that point.  

What is the effect of the appellate court’s instructions on the case on remand?

The appellate court’s ruling often includes instructions. These are the law of the case, and are binding on the trial court. In the preceding example, for instance, the appellate court might have directed that the court retry the issue of grounds for divorce to consider certain aspects, or, in another case, for the trial judge to consider and address Ferguson, Albright or Armstrong factors. I once represented a client in a case that we got reversed and remanded, with a COA finding that there had been a material change in circumstances adversely affecting a minor child, and directing the court to proceed accordingly. The remand trial would have proceeded on the assumption that two prongs of modification were assumed, and that best interest was all that remained, but we settled before that trial.

Are amendments permitted to clear up some of the problems from the initial, unproductive attempt?

Griffith addresses the point this way: “The remanding of a case to the trial court is for the purpose of a trial de novo, and the trial court has the same power to allow amendments to the pleadings …” as it had prior to the reversal. Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 697. See, also Pigford v. Ladner, 142 Miss. 435, 107 So. 658 (1926).

Can the judge try the case on the record already presented?

The purpose of the remand is for a new trial in which ” … the [parties] will be entitled to introduce … evidence anew, together with such additional evidence as [they] may desire to offer, and the defendants be allowed to meet the proof offered by the complainant … ” Clark v. Clark, 203 Miss. 28, 31, 33 So.2d 293 (1948). The scope of the trial on remand may vary considerably from the original trial.

But if the pleadings have not been amended, and the issues are the same, and the parties agree to submit the case to the court on the original record, with the judge to address omitted factors or other matters directed by the appellate court, then there would seem to be no problem. In fact, I read an opinion of the COA in the past year or so in which that very procedure was employed, and the COA on the second appeal merely recited that was done, without comment. I have not been able to find that case for this post. 

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