Thursday, October 27, 2016

Third Party Custody and Visitation

On Tuesday, the Mississippi Court of Appeals decided Darby et. al. v. Combs et. al. located here.  This was a custody case between the paternal grandmother and the great grand parents.  Ultimately, the Court awarded joint legal and physical custody to the parties.  The Court of Appeals affirmed this decision and found that with the natural parent presumption gone with the natural parents, the trial court could award joint custody and visitation to third parties.  My reading of some of the language in this opinion seems to hint that so long as the natural parent presumption is gone, the court could in theory award visitation to various parties if it find that said visitation is in the best interest of the minor child.  This opinion has some of the best discussion I have seen concerning the custody statutes and the current state of the law concerning them. 

Monday, October 24, 2016

Arbitration Lawsuit

I mentioned in a previous post that nursing homes that receive Medicare and Medicaid are now banned from entering into arbitration agreements prior to an issue arising. Last Monday, suit was filed on behalf of several nursing facilities in Oxford to attempt to uphold arbitration.  A copy of the complaint is located here.     

Friday, October 21, 2016

Interlocutory Appeal of Interest

Last week, the Mississippi Supreme Court granted an interlocutory appeal in Baptist Memorial Hospital-DeSoto, Inc. v. Sonya Rankin, as Conservator for Willie A. Rankin; and Virginia Rankin, Individually which presents the issue of whether a medical malpractice suit can be initiated by a conservator on behalf of the ward without the conservator first having obtained consent of the chancery court as required by MCA § 93-13-27

Tuesday, October 18, 2016

Jury Trial vs. Bench Trial

Having conducted both a jury trial and a bench trial, there are advantages and disadvantages of both.  With a bench trial, the court tends to be a lot more lenient on evidentiary issues since it is just them hearing the evidence.  However, the disadvantage is that you have one person sitting as fact finder who has a legal background.   This can result in a different decision than the average juror would make.

With a jury trial, the court is a lot less likely to let close evidence in.  The trial is much more expensive for everyone.  However, cases that are terrible on the law can often times be overcome with a good equity argument.  This is since I have many time juries ignore the law if they do not feel it is right. 

Friday, October 14, 2016

Guardian Ad Litem and Harmless Error

Yesterday, the Mississippi Supreme Court decided Smith v. Smith located here.  This was a nasty custody case involving sexual abuse.  One of the issues was whether it was error to not say why the guardian ad litem recommendation was not followed.  The Court found that:

"We find the fact the chancellor made an independent custody assessment is not, itself, error. Furthermore, after review, we find no error in the chancellor’s ultimate custody decision, evidentiary rulings, and award of costs to the husband. We do, however, find the chancellor should have explained why he rejected the GAL’s recommendation1 that the minor children be assessed and counseled. But we find this omission was harmless error and does not require reversal."

This is the first case I am aware of that has found the failure to state why the opinion was being rejected was harmless error.  This could signal a new shift in the role of the guardian ad litem.

Wednesday, October 12, 2016

Modification of Tax Deductions in Divorce

One party or the other is awarded the income tax deductions at the time of a divorce.  So, can those be modified later?  When the request to transfer a tax exemption is pursuant
to a request to modify a prior decree, a material and adverse change in circumstances must
occur to transfer to one parent a tax exemption that was previously awarded to the other
parent. Peters v. Ridgely, 797 So. 2d 1020, 1024 (¶18) (Miss. Ct. App. 2001). For example,
in Peters, the Mississippi Court of Appeals  affirmed the modification of an original decree transferring tax deductions to the custodial parent following a significant and unexpected increase in medical expenses for minor children coupled with the custodial parent’s need to purchase medical insurance due to the noncustodial parent’s failure to maintain a policy. Id. at 1024-25 (¶20).

Friday, October 7, 2016

Mississippi Criminal Rules for Comment

The Mississippi Supreme Court’s Rules Committee on Criminal Practice and Procedure has posted the proposed Mississippi Rules of Criminal Procedure for public comment.  The filing deadline for public comments is Monday, November 7, 2016.  The link (dated October 6, 2016) is provided below:

Thursday, October 6, 2016

STDs and Divorce

On Tuesday, the Mississippi Court of Appeals decided Farris v. Farris located here.  This is the first case in Mississippi to find that the exposure of a spouse to a sexually transmitted disease amounts to habitual cruel and inhuman treatment as a ground for divorce.  As a side note, I have been advising clients for a while now to get an STD test anytime infidelity is involved.  In some cases it has given them some piece of mind and in others a big bargaining chip in the divorce process. 

Wednesday, October 5, 2016

Service of Process via Certified Mail

The Mississippi Court of Appeals decided Long v. Vitkauskas located here. Long and his wife separated on May 16, 2011.  On March 17, 2014, Long sued Vitkauskas for alienation of affection.  Vitkauskas, a resident of Pennsylvania, was served with process via certified mail marked “restricted delivery” pursuant to Mississippi Rule of Civil Procedure 4(c)(5).  The address listed was Vitkauskas’s place of employment.  The return receipt was not signed by Vitkauskas but rather someone named “Mary” with the last name illegible.

On May 14, 2014, Vitkauskas’s attorney entered a special appearance to contest jurisdiction.  Vitkauskas also filed a motion to dismiss for lack of jurisdiction.  On October 9, 2014, the trial court granted the motion, finding that service was insufficient since Vitkauskas himself did not sign the return receipt.  Long filed a motion for reconsideration and Vitkauskas responded.  After a hearing, the trial court denied Long’s motion for reconsideration and denied Long’s request for additional time to serve Vitkauskas.

This was ultimately affirmed by the Court of Appeals.  This is why I do not do certified mail service for the most part.  There are too many chances for a defendant to play games and argue insufficient service.