Non-Compete Clauses

May 4, 2016 § 2 Comments

Every now and then a suit is filed in chancery court to enforce a non-compete clause in an employment contract. I have heard cases involving bank employees, employment counselors, and broadcasting sales personnel. There may have been others that I don’t recall right now.

Non-competes are used in the legal profession, although the professional rules would seem to proscribe divulging the kinds of confidential information that those clauses aim to prevent.

Our law requires that they be reasonable in scope, geographical coverage, and time, and the reasonableness is relative to the nature and responsibilities of the position. A three-year prohibition against working as a managing nuclear engineer at a competitor anywhere in Mississippi could well be reasonable, while a three-year prohibition against working as a teller at a competing bank anywhere in Mississippi likely would not.

One of the most interesting non-competes I have heard about involves a fast-food sandwich chain that requires sandwich-makers and delivery drivers not to take a similar job within two years at a competitor within three miles of one of their stores, which means practically nowhere. Most people at that level of the pay scale don’t have the money to fight an injunction in a case like that.

An interesting article by Justin Fox on the Bloomberg site explores how non-competes stifle entrepreneurship and innovation, and how their absence allowed Silicon Valley to thrive at the expense of Boston, which (with its MIT and numerous other universities) had been the early seat of technology advancement.


The Right to do Harm to Your Own Interests

May 3, 2016 § Leave a comment

Have you ever stopped to ponder the flip side of the right to remain silent in the face of police interrogation? The flip side is that you have the right to blab uninterruptedly until every smidgeon of defense that you could possibly later assert is totally obliterated.

Likewise, the flip side of the right to appointed counsel is that one may represent one’s self. In criminal cases that is recognized to be such a self-destructive tactic that judges often appoint a lawyer to “consult” with the accused who chooses to act as his own lawyer.

In chancery, there are few matters in which appointed counsel is appropriate or required. But in every case the parties have the right to forego the benefit of counsel and represent themselves, seldom with any positive results.

The most recent example in our appellate courts is Cooper v. Higgins, decided by the COA on March 22, 2016. In that case, Jeremy Cooper and Laquitta Higgins had been involved in custody battles in Michigan and Florida before they wound up in a Mississippi chancery court. Their son, Langston, who was 12 years old at the time of the Mississippi custody modification hearing, had a “post-developmental disorder” on the autism spectrum, but not “full-blown autism,” and he continued to develop toward being autonomous.

Higgins was awarded sole custody in Michigan in 2004. Cooper later filed for custody in Florida, but that suit was dismissed for lack of jurisdiction. In 2008, Cooper filed aa petition to modify in Mississippi, and the chancellor denied relief on the merits. In 2013, he again filed to modify, which was denied. Cooper appealed and the MSSC remanded because the original court reporter had resigned and the transcript could not be produced.

On remand Cooper filed a pro se petition to modify, alleging that Higgins assaulted him in 2005, that she interfered with visitation in 2005, and she misrepresented her place of residence (presumably in a UCCR 8.06 filing). Here is how the COA describes what transpired at trial:

¶8. Cooper subpoenaed Langston to testify, but after talking to the child in camera, the chancellor determined that he lacked the capacity to participate effectively in the hearing. In addition, the chancellor noted that Langston’s testimony was not necessary to determine whether there had been any material change in circumstances. Cooper did not voice any objection to this ruling below, nor does he challenge it on appeal.

¶9. Before Cooper called his first witness, the chancellor emphasized that it was his burden to prove a material change in circumstances. The chancellor also discussed that a custody hearing is a complicated matter and asked Cooper whether he was certain that he wanted to proceed pro se. Cooper confirmed that he desired to do so.

¶10. Cooper called Higgins as his first witness. During a brief examination by Cooper, Higgins testified that she had lived at her present residence for approximately five years, that she was raised by both her biological father and her stepfather, and that she collects books. Cooper then announced that he had no further questions.

¶11. Cooper then took the stand himself. He accused Higgins of acts of violence and of interfering with his visitation in 2005 and 2006, and he attacked her character generally. Cooper also testified that Langston would be better off living with him because he believed that he had a condition similar to Langston when he was a child. Cooper opined that he understood Langston and how his brain worked better than Higgins.

¶12. After Cooper testified, he rested. Higgins then moved to dismiss the petition on the ground that Cooper failed to prove a material change in circumstances. The court granted the motion and dismissed the petition on that ground.

Pretty predictable result, I would say, based on that recitation of the proof that was presented. Judge Wilson, for the unanimous COA, found “not the slightest indication of a material and adverse change in circumstances,” and affirmed on that point.

Cooper’s other substantive argument was that the chancellor was biased against him, which is patently absurd in light of ¶9, above, where the chancellor took pains to explain in advance how modification of custody can be a complicated matter, and offered him the opportunity to proceed other than self-represented. If the chancellor had been truly biased she would have sat there silent behind a crocodile smile while he self-destructed.

As I have said here many times before, I have never seen any self-represented party walk out of a courtroom in better shape than when they walked in.

Oh, and Cooper’s appeal was pro se, also.

Weeks Turn into Years

May 2, 2016 § Leave a comment

The continuing legal saga of Roland and Deborah Weeks took its latest turn with another remand by the COA on March 1, 2016. For those of you who haven’t been keeping score, here is a recap:

  1. The pair were divorced in 2001 after a 9-year separation. Deborah was denied alimony, although she received only 1/3 of the marital estate;
  2. In Weeks v. Weeks, 832 So.2d 583 (Miss. App. 2002), the COA reversed and remanded for the trial court to award alimony;
  3. The chancellor on remand assessed Roland with $3,900 a month in combined periodic alimony, health insurance, and life insurance;
  4. In Weeks v. Weeks, 29 So.3d 80 (Miss. App. 2009) (Weeks II), the COA affirmed the alimony, but remanded yet again on child support and attorney’s fees;
  5. In 2012, Roland filed a petition to modify his alimony obligation, which prompted Deborah to file motions claiming a fraud on the court. The chancellor denied everything but an award of back child support. He denied Deborah’s request for attorney’s fees finding them unreasonable and within her ability to pay. Roland appealed, and Deborah cross-appealed.
  6. In the latest installment of Weeks v. Weeks (Weeks III), the COA affirmed most of what the chancellor ruled, but remanded yet again for the chancellor to reconsider the issue of attorney’s fees from Weeks II.
It has been 24 years since the Weeks’s separation, and 15 since their divorce. The aftermath of the divorce has seen almost continuous litigation, and it is still not done. There is another round yet to go, and another possible appeal. Some cases just be this way.
As for the legal issues in this latest appeal, you won’t find a lot of authority to chew on. This is another decision illustrating how difficult it can be to terminate or reduce periodic alimony, as we have mentioned here not too long ago.

April 26, 2016 § 6 Comments

Judges’ Meeting this week.

Next post May 2, 2016.

Another Unsuccessful Attempt to Modify Periodic Alimony

April 25, 2016 § Leave a comment

Do after-acquired debt and other personal expenses justify downward modification or termination of alimony? That was the central question in the COA case, Hardin v. Grantham, decided March 1, 2016.

Robert Hardin was ordered in 1991 to pay periodic alimony in the sum of $750 a month to his ex-wife, Betty Grantham. In the 1991 judgment, the chancellor projected that Robert’s business could not sustain his then-$80,000 annual income, and based alimony on an assumed $40,000 annual income. In 2013, Robert filed a petition to modify or terminate the payments, claiming that there had been a material change in circumstances so that he could no longer afford to pay Betty.

At trial, Robert claimed that his business had declined, and his income with it. He reported income of $5,562 per month, personal expenses of $4,822 a month, which included the alimony, and business expenses of $8,351.  The chancellor found Robert lacked candor and provided evasive and inconsistent answers to questions in his testimony. The chancellor declined to modify, and Robert appealed.

In her opinion for the court, Judge Carlton first spelled out the familiar rules that govern modification of alimony: the chancellor must (1) determine whether an unforeseeable and material change occurred since entry of the original alimony order; and (2) if so, then consider the Armstrong factors relative to the parties’ financial positions at the time of the original order, and (3) consider the ex-wife’s accustomed standard of living, less her own resources, and the husband’s ability to pay. If no (1), then no modification.

She then turned to the question whether the after-acquired expenses could be a basis to modify:

¶13. Despite Robert’s assertions, the Mississippi Supreme Court has previously rejected “the idea that alimony or child[-]support obligations should be reduced because of the obligor’s other financial commitments[.]” Yancey v. Yancey, 752 So. 2d 1006, 1010 (¶12) (Miss. 1999) (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995)). See also N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody § 14–10 (6th ed. 2012) (“Obligations of child and[/]or spousal support are not generally to be considered as or equated with any other debt known to and collectible under the law. There is more to these obligations than mere debt.”).

¶14. In Varner, a husband argued that the chancellor should reduce his child-support and alimony obligations in light of his other financial obligations. Varner, 666 So. 2d at 497. After the parties’ divorce, the husband opened his own veterinary practice. Id. He also filed for bankruptcy, and he claimed that he had been forced to borrow money from friends and family to pay his child-support and alimony obligations. Id. at 495-97.

¶15. On appeal, the supreme court found no merit to the husband’s argument that his child support and alimony obligations should be modified. Id. at 497. In fact, the supreme court stated:

Personal bills cannot be used as a factor to reduce support payments. Furthermore, simply alleging, as does [the husband], that one is subsisting on borrowed funds does not show with the required particularity that he is unable to pay.

In this case, the chancellor properly found that there had been no material change in circumstances. [The husband’s] income apparently decreased between the time of his divorce and the hearing. However, that decrease was directly related to his decision to open a solo practice and a voluntary move which caused him to give up his supplemental income. [The husband] filed for bankruptcy on July 7, 1993, two weeks after the chancellor denied his request for modification. His bankruptcy petition was dismissed and the case closed on April 18, 1995.

A debtor is prohibited from discharging debt to a former spouse for alimony or support to a child in connection with a separation agreement. Furthermore, simply filing for bankruptcy does not rise to the level of a substantial change without a finding by the chancellor that the filing was made in good faith. The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support. Id. (internal citations and quotation marks omitted).

¶16. Citing Mississippi precedent, including the supreme court’s holding in Varner, the chancellor here found no merit to Robert’s claim that his alimony payments should be modified or terminated because he had incurred other debts and financial obligations. Instead, the chancellor found that he must compare the parties’ relative positions at the time of the divorce with their positions at the time of the requested modification to determine whether an unforeseeable and material change occurred. In looking at the facts of the present litigation, the chancellor ultimately concluded that the only material postdivorce change occurred when Robert’s business became very successful and afforded him many opportunities and luxuries.

The COA affirmed.

We have recently dealt with other cases denying modification or termination of alimony here and here.


Dispatches from the Farthest Outposts of Civilization

April 22, 2016 § Leave a comment


TPR Back in Effect

April 20, 2016 § 2 Comments

Governor Bryant signed HB 1240, which revised the statutes providing for termination of parental rights (TPR). You can read the full text of the bill here. The new law is in effect now.

You will recall that this revision in the law of TPR was made necessary by the MSSC’s decision in the May 21, 2013, case of Chism v. Bright, which in effect ruled that the old statute could not be used in a private (non-DHS) TPR case. A post on the case is here.


Reprise: Checklists

April 19, 2016 § Leave a comment

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

Checklists, Checklists, Checklists

August 12, 2014 § 10 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.

Would a Podcast Help?

April 18, 2016 § Leave a comment

We’ve visited here before some ways to educate your clients about what to expect and how to perform in the courtroom.

Sometimes, though, as you speak of these things with your client you get the distinct impression that your words are not making contact with gray matter. The client fidgets, eyes are glazing over, he keeps interrupting with impertinent what-if questions, and the whole thing seems like a waste of time. Worse, even after going over these things with a  seemingly receptive client, she performs in the courtroom like you’ve never met before. What else can you do?

Maybe a podcast would help.

You can provide your client with a link to a podcast where you repeat all the helpful guidance your client needs to be at his or her best in the courtroom. The beauty is that the client can listen to it at leisure– hopefully when he or she is more focused, can listen to it 100 times if desired, and it will provide a measure of comfort to address all those “what-if” questions. Most importantly,  time spent by the client listening to podcasts is time not spent calling and emailing you.

Here’s a link I found to a podcast by a multi-state domestic litigation firm that you might find useful in coming up with your own.

R.I.P. Judge Dale

April 15, 2016 § Leave a comment

It was only because of travel out of the country, with sketchy internet service — and not by oversight — that I did not pay due respect to the passing of a major figure in Mississippi Chancery Court practice. Retired Chancellor Sebe Dale, of Columbia, died April 5, at age 94.

Here is the official MSSC announcement:

Retired Chancellor Sebe Dale Jr. died Tuesday, April 5, at his home in Columbia. He was 94.

A funeral service for Judge Dale is scheduled for 11 a.m. Friday, April 8, at First Baptist Church in Columbia. Visitation will begin at 9:30 a.m. – his usual time for starting court. Interment will be at Woodlawn Cemetery. Hathorn Funeral Home in Columbia is handling arrangements.

Judge Dale retired Dec. 31, 2010, after 42 years on the bench, 32 of that as chancellor of the 10th Chancery District. He was a Youth Court referee for 10 years before he was elected to the Chancery bench. The 10th Chancery District includes Forrest, Lamar, Marion, Pearl River and Perry counties.

Supreme Court Justice Dawn Beam remembered Chancellor Dale as a mentor. She followed him as 10th District Chancellor when he retired. “Judge Dale lived a life of service to his state and country in the military, as a lawyer, and then as a Chancery Judge. As a lawyer, he taught me respect for the court and love of the law. He retired from the bench just short of 90 years old. When I followed him as Chancellor, I constantly reflected on things he taught me. We have lost a humble servant and dear friend today, and Judge Dale is no doubt hearing the words ‘Well done.’ “

Court of Appeals Judge Eugene Fair of Hattiesburg served alongside Judge Dale as a Chancellor for the 10th Chancery and practiced law before him. “He is my hero. He was one of those people who teaches you how the job is done. He was a judge’s judge. If you want to be a good judge, you try to be like Sebe Dale.”

Judge Fair said Judge Dale was always available to the lawyers. “He was one of those people who went to his office every Saturday morning and probably on Sunday afternoons. If you needed to talk to him, you could find him.” Judge Dale had that same work ethic as a lawyer in private practice. Judge Fair recalled handling a child visitation dispute in which Judge Dale represented the other parent. “We called Mike Sullivan, who was chancellor, on Christmas Day because the daddy and mama were fighting over visitation. We showed up in court the 26th day of December, whatever year that was, and tried that case. He was always available.”

Tenth Chancery Court Administrator Lisa Martin Stringer worked for Judge Dale for 13 years, from the time she was a high school senior until he retired. Judge Dale gave prayerful consideration to the decisions he was called upon to make in family law disputes. “He worked very hard and the decisions didn’t come easy,” Stringer said. “He wanted to do what was right for those children….I always remember him making sure that he had the best interests of the children at heart. He prayed for guidance on how to best serve those children.” Stringer said that Judge Dale called termination of parental rights “the closest thing to a death sentence in Chancery Court. His happiest day in court was a day that he got to do an adoption. He got to create a family that day.”

The building where Judge Dale held court in Columbia, formerly known as the Chancery Court Annex, was renamed “The Sebe Dale, Jr. Chancery Court Building” in his honor in November 2010, shortly before he retired.

At the ceremony to rename the courthouse, Judge Dale said that he followed in the footsteps of his father and grandfather. His grandfather, John B. Dale, was president of the Marion County Board of Supervisors when the main courthouse was built in 1905. “He set a track for me and my father set a track for me. I’ve done my best to be true to it. Thank you so much,” he said at the ceremony.

Judge Dale was a member of the Mississippi Judicial College Board of Governors for 22 years, 18 of that as chairman. He was a member of the State Penitentiary board for eight years. He served as chairman of the Conference of Chancery Judges and of the Judicial Advisory Study Committee, and as president of the Marion County Bar Association.

Judge Dale was a graduate of Columbia public schools, Mississippi College and the University of Mississippi School of Law. He was admitted to the Mississippi Bar in 1948, and engaged in the private practice of law for 31 years. He was a recipient of numerous awards, including the Chief Justice Award, the Mississippi Bar Lifetime Achievement Award and the Mississippi State University Prelaw Society’s Distinguished Jurist Award.

He was a veteran of World War II, having served four years of active duty in the U.S. Army Air Corps. He was a reservist for 27 years, including service in the Judge Advocate General Corps. He retired at the rank of Colonel in 1981.


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