Non-Custodial Dangers

April 28, 2015 § Leave a comment

It’s pretty hard to say “No” to a distraught mother who wants to modify custody or visitation because she is concerned that her 8- and 6-year-old boys are imperiled by the father who is letting the children ride a mini-4-wheeler during his custodial time, and is allowing the children to do things like: running barefoot all over his farm; playing down by the pond where the children might fall in or get swallowed by a water moccasin; or riding a pony; or riding in the back of a pickup or on a trailer across the pasture to and from the chicken houses; or jumping from the hayloft into the hay below.

That’s the fact pattern that a mom alleged against my client back in the 1990’s. A very wise chancellor observed that what town children are allowed to do is quite different than what “our country cousins” experience, and, in the absence of specific evidence that any of the children were actually endangered, he would not change anything.

That same principle came into play in the case of Nurkin v. Nurkin, decided April 7, 2015, in which Caroline Nurkin had complained to the chancellor that her ex-husband Brad was endangering their son during visitation by flying him to and from visitation in a private plane. The chancellor enjoined Brad from transporting the child in a private aircraft, and Brad appealed. Here’s what Judge Lee said for the unanimous court:

¶13. Brad cites to Mord v. Peters, 571 So. 2d 981 (Miss. 1990), to support his position. In Mord, the chancellor restricted the father’s ability to fly his children in his private plane. Id. at 983. The Mississippi Supreme Court reversed the chancellor’s decision and found that absent any showing that flying with the father would be dangerous or that the father was acting without concern for the children’s well being, neither the mother nor the chancellor had the right to restrict the children’s activities during visitation with their father. Id. at 984-85. In this instance, there was no testimony other than Caroline’s unfounded fears that Brad’s operation of a plane would endanger Jake’s life. As the supreme court stated in Mord, “Were we to affirm the chancellor’s position . . . endless litigation possibly would result. We can imagine custodial parents coming to court based on unjustified fears and apprehensions and attempt[ing] to prohibit their children from learning how to drive, fish, hunt[,] or swim when a non-custodial parent is exercising his . . . visitation.” Id. at 986. Furthermore, Brad testified that Jake enjoyed flying with him. There was no testimony that Jake was scared or anxious when flying.

¶14. “A non-custodial parent may determine which extra[]curricular activities the child participates in during visitation, including certain activities of which the custodial parent disapproves.” Givens v. Nicholson, 878 So. 2d 1073, 1076 (¶14) (Miss. Ct. App. 2004). Finding the chancellor’s decision erroneous, we reverse and render on this issue.

Of no particular relevance, but of minor interest, is that the appellant in Mord  was and is a practicing attorney in Mississippi.

The main point is that restrictions on visitation, and in particular on the visiting parent’s conduct with the child, are not favored in our law. A few bullet points:

  • The overnight boyfriend or girlfriend. Absent some objective proof of adverse effect on the children, the ancient custom of enjoining overnight guests of the opposite gender to whom the parent is not related by blood or marriage is no longer allowed. See, Harrington v. Harrington, 648 So.2d 543, 547 (Miss. 1994); Robinson v. Robinson, 722 So.2d 601, 605 (Miss. 1998).
  • Restrictions on religious practices are always suspect and rarely upheld. A visiting father was permitted to take his child to a snake-handling church service, so long as the child was not permitted to touch or get within danger of being bitten. Harris v. Harris, 343 So.2d 762 (Miss. 1977). Even a chancellor’s comment about a parent’s religious beliefs may call a chancellor’s ruling into question. See, e.g., Muhammad v. Muhammad, 622 So.2d 1239 (Miss.1993).
  • Professor Bell lists several other categories in which restrictions on visitation have been upheld to a greater or lesser extent: abusive behavior; family or spousal violence; dangerous conduct; emotional abuse; potential kidnapping; imprisonment; mental health issues; poor parenting r household conditions; sexual conduct; and interference with visitation. D. Bell, Bell on Mississippi Familly Law, 2nd Ed. § 12.08[4][a] through [i] and [5].

These can be issues that are fraught with emotion, and it’s not easy to persuade your client that a futile trip to court is not in his or her, or the child’s, best interest. The more you know about this area, the better equipped you’ll be to advise your client.

 

April 27, 2015 § Leave a comment

State holiday.

Courthouse closed.

April 24, 2015 § 1 Comment

Judges’ Meeting

April 23, 2015 § Leave a comment

Judges’ Meeting

April 22, 2015 § Leave a comment

Judges’ Meeting

Checklisting

April 21, 2015 § 8 Comments

You old timers know of my fondness for what I refer to as “Checklists” — those lists of factors that apply in various cases in chancery court. Newcomers may not be acquainted with the concept, so I republish this list of checklists every now and then to spread the word. It’s a concept I’ve referred to as “Trial by Checklist.”

The idea is that the chancellor is required to address various factors in various types of cases. If you are not putting on evidence to support the judge’s findings of fact under each of those factors, then you are: (a) losing the case; and (b) failing in your duty to represent your client, as well as wasting the court’s time; and (c) committing malpractice.

Here they are:

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.

My recommendation is that you keep each checklist, with citation of authorities, handy, either in a notebook or accessible in your computer where you can photocopy or print them out each time you have a case involving them. For instance, in a divorce case, you might need the checklists for child custody, child support, equitable distribution, and alimony. then, as you prepare, tailor your proof to make a record as to each factor. At trial, you can use each checklist as a template for presentation of your case.

In my courtroom, I keep a notebook on each side of the room with every checklist for lawyers to have handy in a pinch.

Bear in mind that if the judge does not have the proof to support her findings on the applicable factors, your case is in jeopardy on appeal — that is, if the judge somehow ruled in your favor in the first place.

Meet the Other Blogging Judges

April 20, 2015 § Leave a comment

I’ve never given much thought to how many other judges have blogs. Recently, though, in a ramble through the online ABA Journal, I stumbled upon a list of judge blogs, including mine.

The list may or may not be complete, I am not sure. The ABA site asks readers to send in links to other blogs, so I suspect there are some more. Judge Griffis’s blog isn’t there … yet. The ABA list purports to list only regularly updated blogs, but I found some that are inactive.

Here are the active entries, with links:

The Magistrate’s Blog

Anonymous blog by several UK magistrates (JP’s) who tell of the sad, funny, tragic, and epic cases in their courts and the lawyers and characters who play the parts.

Say What?

From 1980 to 2008, US District Judge Jerry Buchmeyer had a monthly column in the Texas Bar’s monthly magazine with hilarious actual legal anecdotes and excerpts from depositions, briefs, and trial transcripts. This blog is a serialized archive of those columns. Reading these is like reading our own autobiography for many of us.

A Pursuit of Justice

Maryland Judge Stephen I. Platt’s bog focusing on the interface between business, law, and public policy. This blog is also published as an op-ed column in the Daily Record, a Baltimore business and legal newspaper.

AsktheJudge.info

Retired Arizona judge Thomas A. Jacobs answers actual questions submitted by teens on a broad array of legal topics, such as cyberbullying, criminal procedure, First Amendment rights, alcohol and the law, and many others. He also writes about legal issues of interest to young people. This is not your usual stuffy, legalistic site. The blog has an appearance and style appealing to young people. If someone — Judge or lawyer — in Mississippi is considering taking on the task of authoring a blog, this would be a worthwhile model for a valuable service for Mississippi youths.

Hercules and the Umpire

The subtitle, “The Role of the Federal Trial Judge,” defines senior status US District Judge Richard George Kopf’s blog. Kopf, of Nebraska, writes on a wide range of subjects with wit, waxing philosophical, and imparting advice to practitioners and other judges alike. Even if you don’t become a regular reader, you owe it to yourself to click on the tab “Generalissimo Francisco Franco and this Blog,” on his home page. Caveat: Judge Kopf has gotten some unwelcome and hostile attention for a post he made that was critical of the USSC’s Hobby Lobby decision, in which he admonished the justices to “STFU.” He also has been criticized for comments that can be considered sexist.

When the Abuser Goes to Work

Judge Patricia A. Barnes’ blog covering legal aspects of workplace discrimination. Barnes is a judge with the Pyramid Lake Paiute Tribe (Chief Judge interim) and the Fallon Paiute Shoshone Tribe (Associate Justice, Court of Appeals) in Northern Nevada. She is a licensed, practicing attorney in Pennsylvania.

The Better Chancery Practice Blog

Oh, but you’re already here. Welcome.

There are several more, but they appear to be defunct. You can access the complete ABA list at this link. And if you click on the tab “Blawgs” on that page, you will find a directory of legal blogs, which the ABA calls “blawgs.”

Inspired by the ABA directory, I googled “Judge Blogs,” and came up with these active sites:

Bench and Bar Experiences

Wisconsin Judge John Dimotto’s blog “to record and convey the daily experiences of a Milwaukee County Circuit Court Judge.” The subjects are practical tips, expositions on the law, and observations.

AJA Blog

Judge Kenneth Burke writes posts of interest to judges (which should be of interest to lawyers) for the American Judges Association.

A Work in Progress

UK Magistrate Trevor Coulart’s blog about life, photography, and his other interests, none of which involve the law.

Anybody know of any others?

 

 

 

Courthouses of Mississippi

April 17, 2015 § 4 Comments

Please email me yours.

George County - Kathy Wilkinson

George – Kathy Wilkinson

Kemper  -LP

Kemper -LP

Hinds at Jackson - LP

Hinds at Jackson – LP

Marion Chancery - Erik Lowery

Marion Chancery – Erik Lowery

Pearl River - Barbie Parham

Pearl River – Barbie Parham

Montgomery - LP

Montgomery – LP

Leflore - LP

Leflore – LP

Stone - Kathy Wilkinson

Stone – Kathy Wilkinson

 

 

No Beneficiary = No Will

April 16, 2015 § 2 Comments

Ramon Regan was residing in a personal care home operated by Swilley. In 2008, Swilley arranged for a notary public to meet with Regan to help him prepare his will. The notary, Beckham, presented Regan with a pre-printed form, which Regan executed, and had properly witnessed. No attorney was involved.

The will specifically spelled out that it was Regan’s intent to make a testamentary disposition of his estate. It also mentioned that he had no surviving wife, and that he had had no children.

What the will failed to spell out, though, was who were to be the beneficiaries of his bounty. There were no specific or residuary beneficiaries named in the will.

After Regan died in 2011, Swilley filed a petition to probate the will. Elsie LeBlanc, Regan’s aunt, was determined to be his sole surviving heir. After Elsie died in 2013, her son Kenneth filed a caveat against probate of Regan’s will.

Kenneth filed a motion to declare Regan’s will invalid due to absence of any beneficiaries. Swilley responded that the document met the requirements of testamentary intent and attestation, and that parol evidence of Regan’s intent should be considered by the court.

The chancellor ruled that he was to look first to the four corners of the document to determine Regan’s intent. Since the document was not susceptible to multiple interpretations, but merely failed to name any beneficiaries, the court refused to consider parol evidence. The judge pointed out that he could not add language to the will, and that the absence of any named beneficiaries left him with nothing to interpret. He ruled that it was invalid to serve as a testamentary instrument. Swilley appealed, complaining that the chancellor erred in ruling the document invalid, and in refusing to consider parol evidence of Regan’s intent.

The COA, in the case of Estate of Regan: June Swilley v. Estate of LeBlanc, decided April 7, 2015, affirmed. Judge Carlton wrote for the unanimous court:

¶15. In the present case, Regan’s “Last Will and Testament” stated the following regarding the disposition of his property: “Upon my death, I want my property distributed as follows: All my estate, this includes monetary and real property.” As in In re Roland, [920 So.2d 539, 541 (Miss.App. 2006)] our review of Regan’s last will and testament reveals that the document contains no ambiguous language or imprecise description of a beneficiary. Instead, as the record reflects, Regan’s purported last will and testament simply failed to devise or bequeath Regan’s property because Regan failed to name or otherwise identify a beneficiary.

¶16. Because Regan’s last will and testament lacks ambiguity, we find that the chancellor correctly refused to allow parol evidence as to Regan’s testamentary intent. As the record reflects, to give effect to Regan’s will, this Court would have to insert a beneficiary’s name where the will completely failed to provide one. Although our precedent establishes that we construe a will in light of the circumstances surrounding the testator at the time he wrote the will, our caselaw also recognizes that “[c]ourts may not amend or reform a [w]ill, neither may courts add to or take from a [w]ill or make a new [w]ill for the parties.” Hemphill v. Robinson, 355 So. 2d 302, 306-07 (Miss. 1978) (citations omitted).

¶17. As reflected in the record, the invalidity of Regan’s purported last will and testament is rooted in the document’s failure to distribute any of Regan’s assets upon his death. Since Regan’s last will and testament failed to devise or bequeath his property to a named beneficiary, and since the document reflects no attempt within its four corners to identify a beneficiary, we affirm the chancellor’s decision declaring the will invalid and his refusal to admit parol evidence.  Accordingly, this assignment of error lacks merit. [Footnote omitted]

Earlier in the opinion, the court noted that MCA 91-1-13 requires that all property, “real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.”

There is some other authority in the opinion pertaining to parol evidence that you might find useful.

I have had several cases in which someone wanted me to vary the unambiguous terms of the will via parol evidence. The usual situation is that dad had made it abundantly clear to everyone that he was going to change his will, but he died before he got around to it. Their argument is that the will was no longer his testamentary intent. If the document is unambiguous, that parol evidence simply will not vary the written document’s terms.

 

 

Naming Names

April 15, 2015 § 7 Comments

Requests for name changes are something every family practitioner encounters.

There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.

If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.

Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.

In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.

If you wish to change any birth fact on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, the judge will send you back to the drawing board.

Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.

Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.

Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”

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