From time to time, as new cases or rules* are released, or issues
of interest arise,we will attempt to bring those
to your attention on this page.
* As you have probably heard me say before, I love Rules. They tell us exactly what is expected of us, when it is expected and how to do things. The only problem with Rules is that Rules are not written by people who expect to live by them [Clive Stafford Smith, The Injustice System] If Rules were written by those subjugated to them, they would be more workable, and make more sense.
The Mississippi Bar’s Board of Commissioners adopted Deposition Guidelines at its November 2014 meeting. In 2012, the Professionalism Committee began working on the guidelines in response to frequent reports to the General Counsel’s office of unprofessional attorney conduct at depositions. The purpose of the guidelines is to promote professionalism in depositions and provide attorneys with ample guidance to conduct a deposition in a professional manner. In addition, the guidelines cite an article that provides in-depth guidance on preparing for and conducting a deposition. A Presentation regarding these guidelines by Honorable Roy Campbell, III, President, Mississippi Bar Association to the Mississippi Trial and Appellate Judges Fall Conference, October 21, 2015, may be found here.
Due to changes in the scheduled dates for the April and October 2016 Judicial Conference Dates, the Court’s Calendar has been modified for those two months. You may view those changes HERE.
Former Chief Justice of the Mississippi Supreme Court, the Honorable Roy Noble Lee, Sr., passed away on January 21, 2015, at the age of 99. Having served his country as a FBI agent and in the Naval Reserves during WWII, and, following in the footsteps of his father, the Honorable Percy Mercer Lee, having served the State of Mississippi as a District Attorney, Circuit Judge and as Chief Justice of the Mississippi Supreme Court, Chief Justice Lee leaves a long, honorable and distinguished legacy throughout this state and nation. Funeral Services will be conducted on Monday, January 26, 2015 at 11:00 a.m. at Forest Baptist Church, Forest, Mississippi.
In honor and remembrance of Chief Justice Roy Noble Lee, Sr., all matters set for settlement conference or for hearing at 9:00 a.m. on January 26, 2015, in the First Judicial District of Jasper County, Mississippi, at Paulding, Mississippi, are hereby continued and reset to 1:00 p.m., January 26, 2015, in the same location.
In 1922, the Mississippi Supreme Court, in addressing issues of alimony pendente lite and attorney’s fees, held in McNeil v. McNeil, 127 Miss. 616, 90 So. 327:
We do not think it proper to consider mere gratuities given to the complainant by her father. The duty to support the wife rests upon the husband, and he cannot avoid the performance of this duty by showing that the father will probably see that the wife does not suffer because the father is able to do so and is manifesting a disposition to meet the wants of his daughter.
The evidence in McNeil showed that the father of the wife:
. . . permitted her to draw checks on his bank account for her needs by signing his name by her, and also that her father had bought certain property, taking title in his own name, the rents and profits of which he permitted her to use, . .
In 1989, the Supreme Court picked up on that holding and that language in Robinson v. Robinson, 554 So. 2d 300, 305 (Miss. 1989), stating:
Nancy has received periodic gratuities from her father, but as held in McNeil v. McNeil, 127 Miss. 616, 90 So. 327 (1921),
We do not think it proper to consider mere gratuities given to the complainant by her father. The duty to support the wife rests upon the husband, and he cannot avoid the performance of this duty by showing that the father will probably see that the wife does not suffer because the father is able to do so and is manifesting a disposition to meet the wants of the daughter.
McNeil, 90 So. at 329.
At that point, it seemed quite clear that gratuities given to one spouse by the parents of that spouse should not be imputed as income to the spouse in computation of alimony, separate maintenance or child support.
‘Nuff said..??? Well, not quite.
In 2013, in a case styled Houston v. Houston, 121 So. 3d 283 (Miss.App. 2013), the Mississippi Court of Appeals, with only one dissent, took a divergent view, affirming the chancellor’s decision to compute the wife’s income partially based upon regular gifts from her wealthy parents. In her brief before the COA, the wife cited the decision in Robinson and argued that the court should not consider gratuities given to her by her parents in determining her income. The COA rejected that argument, stating that the chancellor was not penalizing the wife for the gifts given by her parents. Id. “Instead, the chancellor merely accepted the reality of the unique circumstances–Kellye’s parents consistently paid for practically all of Kellye’s expenses and regularly supplemented her income.”
Following the opinion of the COA, no petition for writ of certiorari was filed.
At best, in the Houston decision, the COA distinguished, in a manner of speaking, the Robinson opinion by accepting “the reality of the unique circumstances,” and at worst, the COA tacitly overruled/disregarded Robinson.
So, there you have it. Arguably similar facts, two different courts, two different holdings. “Nuff said..??? Well, not quite.
The Mississippi Supreme Court issued its opinion today in Huseth v Huseth, NO. 2012-CA- 01576-SCT, which may well have cleared things up a bit. May well have..??? Therein, the Court once again addressed the issue of imputing income to the payor for the purpose of determining the amount of separate maintenance and child support to be paid. More specifically, the issue before the Court in Huseth involved gifts from a parent to a married child and to what extent those gifts could be considered by the trial court in establishing the amount of separate maintenance and child support payments in an action between the married child and his/her spouse. The opinion states:
¶23. The Court of Appeals recently decided a case in which gifts from parents were imputed to the salary of a spouse forced to pay alimony. In Houston v. Houston, 121 So. 3d 283 (Miss. 2013), the Court of Appeals affirmed the chancellor’s decision to compute the wife’s income partially based upon regular gifts from her wealthy parents. There, the chancellor found that the wife’s income was “$3,000 per month based on the average value of the amount of money her parents gave her each month.” Id. at 292. The wife cited the decision in Robinson, 554 So. 2d at 305, in which this Court held that it was improper to consider gratuities to the payee of separate maintenance in determining the amount of maintenance for which the payor was responsible. The wife argued that, in her case, the court should not consider gratuities given to her by her parents in determining her income. Houston, 121 So. 3d at 292. In Houston, it was clear that the wife’s parents consistently had provided her an allowance of between $2,000 and $4,000 per month throughout her marriage. Id. The Court of Appeals rejected that argument, stating that the chancellor was not penalizing the wife for the gifts given by her parents. Id. “Instead, the chancellor merely accepted the reality of the unique circumstances–Kellye’s parents consistently paid for practically all of Kellye’s expenses and regularly supplemented her income.” Id. [Emphasis added here.]
¶27. This is a difficult and unique case. Mike’s living expenses are paid entirely by his parents and/or Lakin Enterprises. In addition to that, he receives a salary from Lakin Enterprises. When living with Tavia, he somehow managed to pay more than $5,000 dollars per month in bills while netting only $2,520.47 per month in salary. This was accomplished through assistance from his parents. Now that he has moved into the house his parents purchased for him, he receives the same amount of cash, his living expenses are covered by his parents, and he contends that $3,988 per month in separate maintenance and child support is too much. Mike works minimal hours, and two years ago, he received more than $100,000 per year in wages. These circumstances are compelling in imputing additional income to Mike. However, if imputed income is applied to Mike’s actual living expenses, those expenses offset the imputed income and must be taken into account when determining the amount of separate maintenance which Mike must pay. [Emphasis added here.]
Note, however, that Huseth was reversed because of the amount of the award and the method of computation utilized. See ¶26 and note 3 below.
1. If, as in McNeil and Robinson, the father of the wife permits her to draw checks on his bank account [amount and frequency not known] and allows here to collect and use for her own purposes rents [amount and frequency not known] from property he owns, or, if the wife receives periodic gratuities from her father [amount and frequency not known], these funds are to be considered gratuities and are not to be imputed to the wife; however
2. If, as in Houston or Huseth the parents of the wife or husband consistently paid for practically all of their child’s expenses and regularly supplemented her or his income, well, that’s a horse of a different color and the funds received may be imputed as additional income.
3. Even so, as noted in Huseth, if imputed income is applied to the spouses actual living expenses based upon cash gifts from or expenses paid by parents, those expenses offset the imputed income and must be taken into account when determining the amount of separate maintenance to be paid.
Now, ‘Nuff said!
We have discovered certain errors in our court calendar for 2014. The calendar has been corrected and revised, as of 12/20/14 and re-posted. You can find a copy HERE.
Your client is a minor who suffered severe injuries in an automobile accident. The problem is, the defendant has shallow pockets. You settle the claim for the policy limits, $25,000, but the hospital wants a large part of that settlement. Or maybe an insurance company asserts a subrogation claim and wants a large part of the settlement proceeds. What do you do? You go read Memorial Hospital v Guardianship of Nicholas Proulx, a minor, No. 2012-CA-01714-SCT, decided 9/12/13, wherein the Court stated:
¶5. . . . This Court adopted the made-whole rule in Hare v. State, 733 So. 2d 277, 285 (Miss. 1999). . . .
¶6. The Court observed that a majority of states adhere to the made-whole rule, which is “the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.” Id. at 283. However, in some states, a contractual right to subrogation will override the application of the made-whole rule. Id. at 282. This Court rejected that approach, adopted the made-whole rule, and held that, because “the equitable nature of subrogation requires that no distinction need be made between equitable and conventional rights of subrogation,” the made-whole rule “is not to be overridden by contract language.” Id. at 283-84 (quoting Franklin v. Healthsource of Arkansas, 828 Ark. 163, 942 S.W. 2d 837 (1997)). The Court held that there is no double recovery until the insured has been fully compensated. Hare, 733 So 2d at 284. The court applied the made-whole rule and held that, because Hare’s uninsured motorist benefits had not fully compensated him for the accident, he had not received a double recovery, and the State was not entitled to subrogation. Id. at 285.
¶7. Memorial argues that the made-whole rule applies only in the context of insurance subrogation. It contends that it had a debtor-creditor relationship with Nicholas to which the made-whole doctrine does not apply. We need not address whether the made-whole rule defeats Memorial’s claim to settlement proceeds. This is because, regardless of the applicability of the made-whole rule, Memorial has no legal right to any recovery from the settlement proceeds. Memorial has no lien against the funds. Unlike some other states, Mississippi has no statutory hospital lien, nor has this Court recognized a common-law lien under these facts. Indeed, Memorial does not argue that it has a lien, or does it assert a right to recovery through a contract or under an implied-contract theory. It does not assert that it is the beneficiary of an assignment of the settlement proceeds. Memorial cited no authority for its argument at the hearing that it has a right to a pro rata share of the settlement proceeds.
¶8. Memorial’s position in this case is comparable to that of the hospitals that sought payment of medical bills in McCoy v. Preferred Risk Ins. Co., 471 So. 2d 396 (Miss. 1985), and Methodist Hospital of Memphis v. Guardianship of Marsh, 518 So. 2d 1227 (Miss. 1988). . . . The Court held that the parents had lacked authority to assign the uninsured-motorist benefits due to David. Id. at 397-98. However, because the medical-expense benefits under the policy authorized Preferred to pay all reasonable medical expenses to the entity rendering medical services, the Court permitted the hospital’s recovery of the $4,000 in medical benefits. Id. at 397.
¶9. . . . This Court rejected the claimed lien on the liability coverage because the mother had no legal authority to execute any document binding Stephen’s estate without prior chancery court approval. Id. (citing McCoy, 471 So. 2d at 396). The Court remanded for a determination of whether the hospital was a direct beneficiary under the medical payments coverage and “due these benefits irrespective of any lien or assignment.” Methodist, 518 So. 2d at 1228.
¶10. In McCoy and Methodist, once the assignment or lien was found to be invalid, the hospitals had no further rights against the liability insurance proceeds due the minor, and the claims were denied. McCoy, 471 So. 2d at 399; Methodist, 518 So. 2d at 1228.
In McBride v McBride released April 2, 2013, the Court once again addressed post trial motions. Read it, again, and take note:
¶15. The Mississippi Rules of Civil Procedure do not provide for a motion for reconsideration.1 Nevertheless, motions for reconsideration are filed every day in Mississippi courts. Recently, in Woods v. Victory Marketing., LLC, 2012-CA-00399-COA, 2013 WL 150218, at *2 (¶¶6-8) (Miss. Ct. App. Jan. 15, 2013), Judge Maxwell, writing for the court, succinctly addressed how courts should treat motions for reconsideration:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). M.R.C.P. 59, 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.
1 “A motion for reconsideration requesting a change in the result of a bench trial has been deemed to be a motion to alter or amend the judgment pursuant to Mississippi Rule of Civil Procedure 59(e).” Street v. Street, 936 So. 2d 1002, 1008 (¶15) (Miss. Ct. App. 2006) (citing In re Estate of Stewart, 732 So. 2d 255, 257 (¶8) (Miss. 1999)).
Are fathers of children born out of wedlock entitled to constitutional due process protections? Well, maybe.
In adoption cases, it is always good practice and preferable to make both parents of the child parties to the action, either by process or by waiver. Taking the time and expending the effort to do it right the first time can save your clients a lot of stress, heartache and money later. Same goes for you. But what if, for some reason, you don’t? Is the failure to join the father of an illegitimate child fatal to the adoption?
The Mississippi Court of Appeals addressed this very issue in IN THE MATTER OF THE ADOPTION OF A MINOR CHILD, A.S.E.L.: V.S.P. NO. 2011-CA-01438-COA, released April 2, 2013.
¶25. . . . As the United States Supreme Court cases cited above explain, constitutional protection is only provided to unwed fathers who demonstrate a supportive, significant relationship with the child. Caban, 441 U.S. at 392-94; Quilloin, 434 U.S. at 256. Accordingly, the court’s finding that Parker did not meet this standard, in effect, negates his right to constitutional protection of his relationship with Andy. Therefore, as a matter of law, the failure to give notice to Parker of the original adoption does not, in and of itself, constitute reversible error.
¶37. The chancellor noted that before Parker could enjoy certain statutory protections as an unwed father, including his right to object to the child’s adoption, he had to prove a commitment to parenthood as explained in Section 93-17-6(4); namely, that he established a “substantial relationship” with the child. As authority, the chancellor pointed to the United States Supreme Court’s Caban, which established this standard for a putative father. See Caban, 441 U.S. at 393-94.
¶39. The chancellor made the following factual findings related to his analysis of section 93-17-6(4). Parker had proof of Dana’s pregnancy and Andy’s birth, but they were in a relationship for “convenience purposes.” They never married, but lived together at Parker’s parents’ home for three to six weeks, at which point she left because Parker was not helping to care for the infant. Of note was the fact Melanie’s residence in Decatur was approximately thirty miles from Brandon, where Parker resides, yet Parker claimed Melanie absconded with the child. Further, Parker testified that he was not presently in a position to pay child support. The chancellor did not find Dana’s testimony credible because she contradicted herself at the hearing, as well as contradicted her testimony from an earlier deposition. And the chancellor found Parker’s testimony was “suspect at best, . . . tr[ying] to say what he needed to say to establish a relationship.” The chancellor concluded:
[T]estimony has not shown that Mr. Parker has consistently provided support for the child, consistently tried to visit with the child. It does not show anything about him contributing any money towards medical expenses or the cost of the birth of the child. . . . There is no testimony that he is now willing and able to assume physical care for this child. . . . There is also no testimony that Mr. Parker made any reasonable diligent efforts to try to locate this child, to try to visit with the child, spend time with the child, and . . . the testimony has established that without Dana[’s] bringing him into this [litigation,] he wouldn’t be here today. . . . She originally also was a party trying to set aside the adoption, but her case [was] dismissed because she signed a consent, and it was years, years later. The statute of limitations had run on her prior to the time she filed her complaint. So, once she was dismissed, then it all fell on Mr. Parker. He had to be the horse that everybody was riding. The trouble is it’s at best a three-legged horse.
¶41. Parker exhibited no interest in asserting his paternal rights until he was approached by Dana over four years after the adoption. Dana confirmed Parker’s testimony that she was paying for the litigation to set aside the adoption in the hope that if Parker won, she could obtain visitation rights. We note Parker did nothing to prevent Andy, in his infancy, from being adjudicated “neglected” by the youth court. Moreover, Parker did very little for Dana during the pregnancy or thereafter. In sum, he did not demonstrate actions indicative of any commitment to Andy, much less the required showing of a “full commitment to the responsibilities of parenthood.”
¶42. This issue is without merit.
Even so, it’s safer to do it right the first time. If the father is know, make him a party one way or the other. If the mother persist in her assertions that she does not know who the father is, after you fully document that assertion, make sure she understands that you will have to publish in the newspaper for the John Doe father, thus alerting the whole world of the unknown status of the father.
As a certain shoe manufacturer says, Just Do It!
In In The Matter of the Conservatorship of Angela Ann Lewis, released 3/5/13, the COA, once again, referred to §93-13-38:
§93-13-38. Guardian’s general functions provides, in part:
(1) All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.
When you open a guardianship or conservatorship, just as when you open a testate or intestate estate, you MUST:
- Post the appropriate bond, if required [§93-13-17];
- File the Oath of the fiduciary [§93-13-17];
- Have the Clerk issue Letters of Guardianship [§91-7-63 and §91-7-35] See also: First Colony Life Ins. Co. v. Sanford, 480 F.Supp.2d 870 S.D.Miss.,2007. March 05, 2007 ;
- File an initial inventory [§93-13-33];
- Publish Notice to Creditors [§§91-7-145 and 147];
- Thereafter, the guardian has the same duties and responsibilities as any fiduciary. [See: §93-13-38, 91-7-1, 91-7-47, and Harper v. Harper, 491 So.2d 189 Miss.,1986.]
- And, don’t forget: No guardian shall make any expenditure in excess of his ward’s income for the ward’s support and education without a previous order of the court or chancellor authorizing the same. § 93-13-35
Want to seal your Court file and shield if from public scrutiny? You now have a road map toward that end, thanks to the Mississippi Supreme Court’s decision in In the Matter of the Estate of Brian K. Cole, Deceased, Gregory Cole, Administrator: Ford Motor Company v. Wayne E. Ferrell, Jr. and James W. Nobles, Jr. In the Matter of the Estate of Brian K. Cole, Gregory Cole, Administrator: Ford Motor Company, Nos. 2011– IA– 01103– SCT, 2011–CA–01130–SCT, rendered December 6, 2012.
In Estate of Cole v Ferrell, Associate Justice Leslie D. King, writing for the court, noted that although Court filings are considered to be public records, unless otherwise exempted by statute, [¶ 15]:
.. . . parties may file documents under seal, and the Act does not conflict with the court’s authority to declare a public record confidential or privileged. Specifically, Section 25–61–11 addresses exempt or privileged records, providing that:
The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.
Miss.Code Ann. § 25–61–11 (emphasis added). Thus, Ford’s contention is correct. A court may, within its discretion, determine if nonexempt matters should be declared confidential or privileged, removing those records from public disclosure.
Estate of Cole v Ferrell, ¶ 16. Associate Justice King then continues:
¶ 19. Generally, confidentiality helps facilitate settlement and, in turn, conserves judicial and private resources. Hasbrouck v. BankAmerica Housing Serv., 187 F.R.D. 453, 458–59 (N.D.N.Y.1999). Thus, public policy provides a basis for preserving the confidentiality of settlement agreements when practical. Id. Conversely, failure to preserve confidentiality could discourage settlement. . .
Citing for authority Grove Fresh Distrib., Inc. v. John Labatt Ltd., 888 F.Supp. 1427, 1441 (N.D.Ill.1995) (citation omitted), the Court opines that because confidentiality is a “bargained-for element” of this settlement agreement, it should be respected, if practical.
Ultimately, the Court found that:
The chancellor focused more on the public’s right to access versus the state’s policy favoring settlement agreements, stating “neither court has ever articulated a policy concerning the sealing of court files or orders based strictly upon the agreement of the parties.” As the chancellor stated, “[t]he fact that the parties agree that the settlement is confidential doesn’t make it so.” But, when practical, our appellate courts have respected confidential settlement agreements between private litigants.
So, if you, or your client, want that court file sealed from public view, you must allege:
✓ There is a settlement agreement, or maybe even a partial settlement agreement;
✓ The settlement agreement is between private parties;
✓ The settlement agreement does not involve matters of public concern; and
✓ The terms and provisions of the settlement agreement is not necessary to resolve the under-lying cause of action.
Hey, it’s nobody’s business anyway, right?