Friday, April 13, 2018

Same-Sex Parents

Last week, the Mississippi Supreme Court decided Day vs. Day located here.  The issue in the case was over a same-sex couple who had a child by a sperm donor.  The trial court had determined that the non-birth parent was not a legal parent and that the sperm donor's rights had to be terminated.  The Mississippi Supreme Court reversed that case and found that the sperm donor had no rights and sent the case back for an Albright analysis.

Friday, April 6, 2018

Text Messages


In Stevens v. Belhaven University, the Fifth Circuit described a set of findings that justified a $500 sanctions award on a client and $100 on a lawyer (adding numbers and headings for ease of reference):


(1. Preservation letter) The court explained that counsel had received a letter demanding him to “preserve and sequester” the phone.



(2. Failure to preserve) The defendant “was therefore sur-prised to learn . . . that the phone had broken and was no longer in [plaintiff’s] possession [but] had been taken . . . to a local AT&T store [where] she pur-chased a new phone.”



(3. Lack of explanation) “In her deposition, [plaintiff] could not explain how some of the text messages were deleted from her phone before they were shared with the EEOC.”



(4. Actual relevance of material at issue.) “When [she] did search her iCloud, moreover―. . . she identified new, material, and important evidence.



(5. In addition to (3), inconsistent explanation.)  That . . . directly contradicts [her] ear-lier sworn statement that she had produced everything to [the defendant].”

No. 17-60652 (April 2, 2018, unpublished).

Tuesday, April 3, 2018

Business Valuation

I have been working on two complicated business valuation divorce cases for the past few week.  Mississippi does not allow goodwill to be a part of the valuation in the context of divorce.  According to the Mississippi Supreme Court, the value must be determined on a “fair market value” basis and the only approved valuation methodology is the Net Asset Approach, which calculates the value of the assets and liabilities with no entity or personal goodwill, but with appropriate discounts related to marketability and control.

Tuesday, March 27, 2018

Social Media Restrictions and Child Custody

Today, the Mississippi Court of Appeals decided Harden vs. Scarborough located here.  The trial court had restricted both parents from posting pictures to social media of their child and also enjoined them to going to their child's school.  The Court of Appeals reversed and rendered the judgment.  They noted:  ... “[i]n the absence of conduct harmful to children, . . . a court cannot dictate what would normally be parental decisions about a child’s health, education, and welfare.”  Deborah H. Bell, Mississippi Family Law § 12.05 at 368 (2d ed. 2011); cf. Cox v. Moulds, 490 So. 2d 866, 868 (Miss. 1986) (“something approaching actual danger or other substantial detriment to the children—as distinguished from personal inconvenience or possible offense to middle class sensibilities—is required before a chancellor may restrict visitation”); Mord v. Peters, 571 So. 2d 981, 983-86 (Miss. 1990) (similar).  As to social media, Scarborough and Harden will just have to get along.  As to visits to Rhett’s daycare or school, they should follow the policy that the daycare or school sets for all parents.  We reverse and render as to these provisions of the chancery court’s final judgment."

Wednesday, March 21, 2018

Personal Jurisdiction and Divorce


Below is an excerpt from a motion regarding divorce and personal jurisdiction that I did on a case recently.  
Divorce is regarded as a form of in rem action, a court may grant divorce even though the defendant does not have minimum contacts required for personal jurisdiction.  In 1942, the United States Supreme Court held that one spouse’s domicle in the forum state, combined with proper process is sufficient to allow a grant of divorce, even in the absence of personal jurisdiction over the defendant.  Williams vs. North Carolina, 317 U.S. 287, 299 (1942). 

As such, a court without personal jurisdiction over a defendant can still grant a divorce.  The only issue would be property division.  E.g. Pierce vs. Pierce, 42 so.3d 658, 659 (Miss. Ct. App. 2010)(Washington court granted divorce to military husband against Mississippi wife, but lack jurisdiction to divide property).  For this, personal jurisdiction is required. 

The Due Process Clause of the Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. amend. XIV. Regarding the Due Process Clause and personal jurisdiction, the United States Supreme Court has held:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The general principle regarding the exercise of jurisdiction over a nonresident is that he "may not be subjected to a litigation in a foreign jurisdiction unless he has `certain minimum contacts with it such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice'. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 102 (1945)." Administrators of the Tulane Ed. Fund v. Cooley, 462 So.2d 696, 702 (Miss. 1984).

These contacts must amount to something more than occasional "fortuitous" instances where the defendant had in the past come into some casual, isolated contact with an in-state resident. Cooley, 462 So.2d at 703 (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980)).  "Purposeful activity" by a non-resident in the forum state may subject him to in personam jurisdiction there. If a nonresident corporate or individual defendant has "purposefully availed itself of the privilege of conducting activities within the forum state", then it is considered not "unfair" that the nonresident's important rights be adjudged in that forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). See Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618-20 (Miss. 1988); Anderson v. Sonat Exploration Co., 523 So.2d 1024, 1026-27 (Miss. 1988).

There is no constitutional imperative that the action arise out of the non-resident defendant's contacts/activities in this state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, 411 (1984); Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696, 703 (Miss. 1984). All that is required is that the non-resident defendant have continuous and systematic general contacts with this state. See Restatement (Second) of Conflict of Laws § 35(3) (1971).  As the Fifth Circuit held in Stripling v. Jordan Production Co., LLC, a defendant's single act is sufficient to confer personal jurisdiction "so long as the defendant `reasonably anticipate[s] being haled into court' in the forum state.  

Friday, March 9, 2018

Moving and Child Support

Moving to another state can have effects on child support.  Normally as long as one party stays in the state that issued the child support, the court there continues to have jurisdiction over it.  However, what happens when everyone moves to another state?


(1)  "In Mississippi, petitions to modify foreign child support orders are

governed by Mississippi's version of the Uniform Interstate Family Support Act," codified in Mississippi Code Annotated sections 93-25-1 through XX-XX-XXX (Rev. 2004). Nelson v. Halley, 827 So.2d 42, 44(¶ 8) (Miss.Ct.App.2002).  The UIFSA governs the question of subject matter jurisdiction, it may be raised at any point during the proceedings. See Esco v. Scott, 735 So.2d 1002, 1006(¶ 14) (Miss.1999).

The Mississippi Supreme Court, in Nelson, set forth the basic

framework of the UIFSA:

The first step under the proceedings authorized by this state's version of UIFSA is to file the foreign judgment in an appropriate chancery court. Once the judgment is registered, the subject matter of this state's jurisdiction on that foreign judgment depends on the residences of the individuals affected. The subject matter is alterable by consent. Regardless of consent, the judgment can be enforced much more readily than it may be modified.

Id. at 45(¶ 10).

           Child support provisions are governed by Mississippi Code Annotated section 93-25-101 of the UIFSA, which states the following:

(1) If Section 93-25-107] does not apply, except as otherwise provided in Section 93-25-108, upon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that:

(a) The following requirements are met:

(i) Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;

(ii) A petitioner who is a nonresident of this state seeks modification; and

(iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or

(b) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

(2) Modification of a registered child support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.



(3) Except as otherwise provided in Section 93-25-108, a tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the order of support. If two (2) or more tribunals have issued child support orders for the same obligor and the same child, the order that controls and must be so recognized under the provisions of Section 93-25-21 establishes the aspects of the support order which are nonmodifiable.



(4) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.



(5) On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.

Miss.Code Ann. § 93-25-101 (emphasis added).

            To put the issue simply, if the parties to a child support order move to different states, the payor must seek modification in the payee’s state of residence.   See Patterson vs. Patterson, 20 So.3d 65, 69-71 (Miss. Ct. App. 2009)(California no longer had exclusive jurisdiction to modify after a mother and child moved to Mississippi and the father to Maryland.  Maryland, not Mississippi was the state with jurisdiction to hear the mother’s petition to increase child support.)  Ironically, if the payee is seeking modification, they must go to the payor's state.  This is a very complicated area. 

Wednesday, March 7, 2018

Tennessee Issue of Interest

Tennessee Attorney General Opinion 15-14 states that an ordained minister of the Universal Life Church is not considered a valid marriage under Tennessee law.  The ministers are essentially ordained online with no requirements.  The opinion is located here. The opinion points to Tennessee Code Annotated  § 36-3-301 which provides in the pertinent part, as follows: "In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act. Tenn. Code Ann. § 36-3-301(a)(2) (emphasis added).  I think that last part of the statute may be an area of litigation in Tennessee and Mississippi.  Some churches truly have ministers but there is no formal ordination process.