The Touchstone for Modification

October 6, 2015 § Leave a comment

The recent COA decision in Vogt v. Blann, handed down September 15, 2015, includes some interesting language that you might want to take to heart next time you have a custody modification case.

Brian Blann and April Vogt were divorced from each other in 2007. They had one daughter, Adyson, and April was awarded custody of her. In 2012, Brian filed a petition for modification of custody. At trial the proof established some questionable circumstances that had arisen since the divorce:

  • April dated various men, lived with one, and gave birth to a child whose father she could not identify.
  • Adyson attended several different schools, and had absences due to moves.
  • When in kindergarten at one school, Adyson missed 12 days of school, nine unexcused.
  • At another school during the same school year, Adyson missed six days and was tardy 12 times.
  • At the time of trial, Adyson was in first grade, and had seven absences and four tardies. She had an “F” in reading.
  • Adyson had several illnesses, including strep, hand-foot-and-mouth disease, and April did not always get her suitable medical care.
  • Police were called to an altercation between April and her boyfriend; she was arrested, “went off” on the police, and tried to kick the window out of the squad car where she was detained.
  • DHS took custody of all three of April’s children (including Adyson) for six months.
  • Adyson had serious dental issues that April had not adequately addressed.

The chancellor found there to have been a material change and an adverse effect, and awarded Brian physical custody. The parties were to share joint legal custody, and April was given visitation rights. April appealed.

In his opinion, Justice Irving said this:

¶19. The chancellor determined that there had been a material change in circumstances that adversely affected Adyson’s well-being based on the following findings: April’s “numerous moves,” which created instability; “numerous men” in Adyson’s life; “numerous tardies and absences at the school[s,]” some of which were unexplained; and Adyson’s “suffering” grades. The chancellor also noted, with respect to the police incident, that the “reaction that the mother did [sic] at that time to that circumstance was certainly not smart.” The chancellor also pointed out that April did not know if “the children [had woken] up and look[ed] outside” and had seen their mother’s behavior.

¶20. The record is silent as to April’s living conditions at the time of the initial custody order, so we have nothing to compare. [Emphasis mine] …

Now, let’s stop right there.

It’s fundamental that modification of custody requires (a) material change in circumstances of the custodial parent’s living circumstances; (b) adverse effect on the child; and (c) a determination that it is in the child’s best interest to change custody.

Yet here, “the record is silent” as to April’s conditions at the time of the original custody determination in the divorce. Oops. That could have been a fatal mistake, but for the chancellor who was undoubtedly making findings that he felt he had to make for the best interest of Adyson.

If you find yourself in a similar case, be sure to put on proof to show what were the custodial parent’s living circumstances at the time of the initial custody determination. It may come in via adverse testimony of the respondent herself, or through your client. It may be by third parties. It could even come in through the chancellor’s original opinion and judgment at the time of the initial custody determination, which you can get into the record by a certified copy, or by asking the court to take judicial notice.

But however you do it, you have got to show that there has been a change, and to prove change you have to show what the situation was that has now changed. This is true in every type of modification. If it is child support, you have to show the parties’ financial situation, and the age of the child at the time of the initial judgment. Change is the prime mover in modification.

MSSC Looks at the MRCP

October 5, 2015 § Leave a comment

The MSSC’s internal committee on rules of civil procedure has sent out a letter soliciting comments and suggestions for changes to the MRCP. Deadline for comments is in December.

The letter, which was addressed to various constituent groups, appellate judges,the chairs of the trial court conferences, and others, said that the committee, consisting of Justices Dickinson, Randolph, and Coleman, intends to do a thorough study of the rules, review suggested changes, and re-draft the rules as the committee deems appropriate. Changes would then be sent to the court’s rules advisory committee for study and further work.

An upcoming article in the Mississippi Lawyer will provide further details.

“Quote Unquote”

October 2, 2015 § Leave a comment

“Waking up this morning, I smile. Twenty-four brand new hours are before me. I vow to live fully in each moment and to look at all beings with eyes of compassion.”  —  Thich Nhat Hanh

“Our job is to love others without stopping to inquire whether or not they are worthy. That is not our business and, in fact, it is nobody’s business. What we are asked to do is to love, and this love itself will render both ourselves and our neighbors worthy if anything can.”  —  Thomas Merton

“When death, the great Reconciler, has come, it is never our tenderness that we repent of, but our severity.”  —  George Eliot


The Presumption from Family Violence

September 30, 2015 § Leave a comment

MCA 93-5-24(9)(a)( i ) creates a rebuttable presumption that it is not in a child’s best interest to be placed in the custody of a parent who has a history of family violence (paraphrased). It’s a topic about which we have posted here before.

Larry and Deidre Hammonds both sought custody in a divorce case between them. Deidre was awarded temporary custody, but Larry filed for emergency custody and modification after Deidre and her 15-year-old daughter by another marriage, Courtney, were involved in a physical altercation that resulted in Deidre’s arrest for domestic violence. Larry’s and Deidre’s own daughter, Angelina, was not present at the time. The charges were later dropped. Courtney went to live with an aunt in N. Carolina, and Deidre filed a petition charging that Larry was wrongfully withholding Angelina’s custody from her. The chancellor ordered that the child be returned to her, finding no showing of immediate or irreparable harm. The court did, however, order that there be no contact between Angelina and Courtney unless supervised by Deidre.

The parties entered into a consent on all issues, including custody, and, following a trial, the judge awarded the parties joint legal custody. Deidre was awarded sole physical custody, and the restrictions as to Courtney were eliminated. Larry filed for rehearing per MRCP 59, but was overruled. Larry appealed on several issues, but we focus here on his claim that the chancellor erred by not giving proper consideration to the family violence.

In an opinion rendered September 15, 2015, in Hammonds v. Hammonds, the COA affirmed. Judge Barnes addressed the domestic violence issue for the court:

¶26. After the physical altercation between Deidre and Courtney, the chancellor had ordered that Courtney must be supervised by Deidre when interacting with Angelina. However, this restriction was rescinded in the court’s final judgment. Larry argues the chancellor “erroneously overlooked” this issue of family violence in awarding primary physical custody to Deidre. He cites Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013), which states there is a “rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody of a parent who has a history of perpetrating family violence.” This presumption “may be only be rebutted by a preponderance of the evidence,” and:

In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:

1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

2. Whether the perpetrator has successfully completed a batterer’s treatment program;

3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

Miss. Code Ann. § 93-5-24(9)(a)(ii) & (iii).

¶27. However, in the order denying Larry’s motion to alter the judgment, the chancellor explicitly addressed Larry’s claim and discussed the statute, stating:

The presumption [from the statute] comes into existence by showing either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. . . . [T]he Plaintiff’s own child, Courtney, was a behavioral problem in the household.

On one occasion[,] the Plaintiff and her child, Courtney, engaged in a dispute which resulted in physical aggression. Criminal charges were filed and later dismissed. There were also allegations regarding an altercation between the Defendant’s child and the Plaintiff. [Fn omitted ] No criminal charges were filed. The record is filled with testimony regarding each party yelling, cursing, hollering and screaming in the household and at the children.

. . . .

Despite the chaos, the Court finds that neither party has a history of perpetuating family violence on any household member and that neither has been responsible for an incident of family violence that has resulted in serious bodily injury.

In a similar case, C.W.L. v. R.A., 919 So. 2d 267, 271-72 (¶¶12-17) (Miss. Ct. App. 2005), we upheld a chancery court’s finding that this statute was inapplicable because there was no “pattern of family violence,” and the testimony of the parties at most “documented general yelling and screaming which, on a few occasions, resulted in slapping and perhaps one incident of choking[,] . . . and there w[ere] no serious or even moderate injuries resulting from the same.” Reviewing the evidence in the present case, we find no abuse of discretion in the chancellor’s findings.

There was no abuse of discretion because the chancellor applied the proper legal standard that there must be either a history or pattern of violence, or there must have been serious physical injury, neither of which were found to be present here. And the evidence supported the chancellor’s findings. Before you invest too much of your custody case on this presumption, make sure that your evidence establishes the prerequisite history and/or injury.

“I Just Can’t Find the Time …”

September 29, 2015 § 2 Comments

Seven reasons you feel like you never have enough time from Business Insider.

When to Appeal from Denial of a Probated Claim

September 28, 2015 § Leave a comment

We should all know by now that a judgment that disposes of fewer than all of the contested issues in a case, or as to fewer than all of the parties, is not final and appealable, per MRCP 54(b).

So, consider this case …

You represent a creditor who has timely probated a claim against an estate. The executor files a contest to your client’s claim and notices it for hearing. At the close of the hearing the chancellor renders a bench opinion denying your client’s claim and enters a judgment to that effect. Now your client wants to appeal.

… what is your appeal time?

On one hand, the judgment denying the probated claim obviously disposes of fewer than all of the contested issues in the case, and fewer than all of the other parties are finally affected (i.e., other creditors, heirs or beneficiaries, etc.). So is an appeal barred by R54(b)?

On the other hand, your client’s involvement in the case is most assuredly concluded. The estate will proceed on its merry way without your client’s further involvement. And it could take months or even years for the court to wind up the estate and enter a final judgment closing it. Why should your client have to wait.

The question did arise in the recent COA case, Estate of Holmes: Holmes v. Turner, decided September 1, 2015. In that case, Becky Turner and her nephew, Brett Holmes, were in a dispute over a claim that Brett probated against the estate of Frances B. Holmes. The chancellor denied the claim and Brett appealed. Becky asserted on appeal that the court’s order or judgment overruling the claim was not a final, appealable judgment, and that, therefore, Brett’s appeal was untimely. In footnote 3, at ¶16, Justice Maxwell, writing for the court, disagreed with Becky’s position:

Becky asserts this order was not final and appealable, comparing it to the interlocutory order in the lawsuit-within-an-estate case In re Estate of Drake, 134 So. 3d 328 (Miss. Ct. App. 2013). But in contrast to the order in that case, the chancellor’s order here finally resolved the probate claim by Jimmy’s estate that Brett lodged against Frances’s estate. Further, both the Mississippi Supreme Court and this court have exercised appellate jurisdiction over timely appeals from orders either allowing or disallowing claims against still-open estates. E.g., In re Estate of Petrick, 635 So. 2d 1389 (Miss. 1994); In re Estate of Ladner, 911 So. 2d 673 (Miss. Ct. App. 2005).

That sort of obliquely says that the time to appeal is within thirty days of the order or judgment denying the claim, but it does not come right out and say so.

There actually is a case, however, that directly answers the question. In Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987), Braxton contested Johnson’s claim. Johnson prevailed, and Braxton did not immediately file an appeal, but rather waited until the judgment closing the estate was entered. The MSSC said this:

The question therefore is whether the time for an appeal for an administrator or executor unhappy with a decree allowing a contested claim runs from the date of such decree or from the date of the decree finally closing the estate. Darryl has not seen fit to cite this Court with any apposite authority supporting his response to Johnson.

We agree with Johnson, that the time for any appeal from a chancellor’s decision on the claim started on the date of the decree allowing it.

Miss. Code Ann. § 91-7-165 is the statutory procedure for contested creditors’ claims. Miss. Code Ann. § 11-51-9 recognizes final decrees include “matters testamentary and of administration …” Miss. Code Ann. § 11-51-99 specifically authorizes executors or administrators to appeal from any decree affecting them in their fiduciary capacity.

While the specific jurisdictional question raised by Johnson has never been addressed by this Court, it appears that appeals by administrators or executors unhappy with a decree allowing a contested claim have generally been taken from that decree. See: McKellar’s Estate v. Brown, 404 So.2d 550 (Miss.1981); Wooley v. Wooley, 194 Miss. 751, 12 So.2d 539 (1943); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926).

That the administrator or executor’s time to appeal begins to run from date of the decree allowing the claim is supported by most of the authorities from other states which have addressed this question. See: Parsons v. M.E. McCabe & Son, 127 Kan. 847, 275 P. 173 (1929); In re Swanson’s Estate, 239 Iowa 294, 31 N.W.2d 385 (1948); In re Hildreth’s Estate, 113 Vt. 26, 28 A.2d 633 (1942).

There is, however, some contrary authority. See: In re Naegely’s Estate, 31 Cal.App.2d 470, 88 P.2d 715 (1939); In re Gooder’s Estate, 68 S.D. 415, 3 N.W.2d 478 (1942); In re Allen’s Estate, 175 Wash. 65, 26 P.2d 396 (1933).

We find the better view is that time for an appeal should run from the date of the decree on the claim.

The efficient and orderly administration of estates and payment of all just debts without unjustified delay compels our conclusion. To permit an administrator to wait until an estate is otherwise ready for closing before deciding whether or not to appeal a decree allowing a claim would countenance outrageous postponements in paying the indebtednesses due by the estate. Moreover, an administrator cannot close an estate until there has been a final adjudication as to precisely what debtors are due by the estate, which he has a duty to pay. See: Miss.Code Ann. § 91-7-291; Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846 (1938); Walker v. Woods, 166 Miss. 471, 148 So. 354 (1933).

The time for taking an appeal from the November 8, 1982, decree having long since expired, this Court is without jurisdiction to hear any defense to Johnson’s claim against the Philyaw estate. Miss. Code Ann. § 11-51-5.

Philyaw deals with the time for an administrator or executor to appeal from a ruling adverse to the estate, but there is no logical reason why the same rationale should not apply to a creditor appealing from an adverse ruling. It’s that goose-and-gander thing.

Birthplace of America’s Music

September 25, 2015 § 4 Comments

Kingfish at Meridian’s Brickhaus









Reprise: Checklists

September 23, 2015 § 1 Comment

Reprise replays posts from the past that you might find useful today.

Checklists, Checklists, Checklists

August 12, 2014 § 9 Comments

You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.

For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”

If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.

I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.

If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Child Support.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

And here are two checklists that will help you in probate matters:

Closing an estate.

Doing an accounting in a probate matter.

Why are Lawyers so Unhappy?

September 22, 2015 § 2 Comments

An excerpt from psychologist Dr. Martin J. Seligman’s book, Authentic Happiness.

Binding an Incompetent to a Contract

September 21, 2015 § Leave a comment

Can an incompetent person be bound to a contract?

That was one of the questions presented in Estate of Holmes: Holmes v. Turner, handed down by the COA on September 1, 2015.

Frances Holmes suffered from Alzheimer’s disease, and was a total-care nursing home patient for the last ten years of her life. Her son Jimmy had her power of attorney and was responsible for paying her bills for her. Frances had more than $150,000 invested in the stock market, but Jimmy elected not to liquidate her investments, apparently for tax reasons, choosing instead to pay Frances’s nursing home bills from his own money. He wrote $85,000 in checks for that purpose between 2007 and 2009, when a conservatorship was established, with Jimmy’s sister Becky as conservator, and she liquidated the stock to pay their mother’s expenses. Jimmy was not happy that Becky sold the stock, and left angry voicemails complaining that the proceeds of the stock sale belonged to him, due to his payment of his mother’s expenses. Becky responded with a letter explaining that the money was being used for Frances’s care. Jimmy never filed a claim against the conservatorship.

Jimmy died in March, 2011, and Frances died in September of the same year.

Becky had the conservatorship closed and admitted Frances’s will to probate. Under the terms of the will, Jimmy’s son Brett was to inherit Jimmy’s interest, since Jimmy had predeceased Frances. Becky notified Brett that his grandmother’s will had been probated. When Becky filed her Affidavit of Known Creditors, however, she did not name Jimmy. Notice to Creditors was published, and no claim was filed by Brett, who was fiduciary in Jimmy’s estate. A year later Brett did file a claim against Frances’s estate. Becky defended on the ground that Frances was incompetent, and so was incapable as a matter of law of entering into a contract. She also argued that Brett filed his claim too late. The chancellor disallowed the claim, and Brett appealed.

Judge Maxwell wrote for the court:

¶18. Becky argued—and the chancellor agreed—that Frances, who suffered from Alzheimer’s, was mentally incapable to enter a contract to repay the almost $85,000 worth of checks Jimmy wrote her. Of course, to be valid, a contract requires “parties with legal capacity to make a contract.” Rotenberry v. Hooker, 864 So. 2d 266, 270 (¶13) (Miss. 2003). But this case presents a unique circumstance where Frances’s mental incapacity was not a barrier to an implied contract arising. See Talbert v. Ellzey, 203 Miss. 612, 620, 35 So. 2d 628, 631-32 (1948).

¶19. In Talbert, the Mississippi Supreme Court recognize an implied contract existed between an incapacitated woman and her brother. Id. The brother had removed his incapacitated sister from the state mental hospital and took care of her until her death. According to the supreme court, “when necessaries are furnished to a person who by reason of mental incapacity cannot himself make a contract, the law implies or imposes an obligation or agreement on his part to pay for them; his liability for necessaries is deemed rather a benefit than a disadvantage to him.” Id. (citations omitted).

¶20. Here, Becky has conceded the checks Jimmy wrote to Frances were used for Frances’s benefit. While Frances lacked the mental capacity to make a contract with Jimmy to pay him back, the law recognizes she was not disadvantaged by the liability for her nursing care. So according to Talbert, the law imposed an obligation on Frances’s part to repay Jimmy the $85,000 he expended to pay for needed care. See id.

The court went on to find Brett’s claim to be untimely, which is the subject of another post.

These kinds of cases at the trial level are often fact-intensive and the facts are shaded with nuances. For instance, a daughter who can not afford to live on her own moves in with her mother. She cooks, cleans, and provides personal care for her increasingly incapacitated mother. At what point does the free room and board succumb to a claim for services rendered? If the mother never paid the daughter a cent during her lifetime, does that not raise a presumption that the mother considered the services a gift offered out of love and affection rather than compensable services?

In Holmes, it was clear — and undisputed — that the money was spent specifically for Frances’s care. Most of these type cases don’t offer so neat a fact package.


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