New Frontier

I previously talked about here that the United States Supreme Court declared portions of the Defense of Marriage Act Unconstitutional.  This afternoon my office has filed of record one of the first if not the first homosexual divorce action in the State of Mississippi since this ruling.  The New Frontier of law has arrived and we will have to wait to see how the Court handles it. 

Liability for all Injuries Flowing From Negligence

To show negligence, a plaintiff has to present evidence of duty, breach of duty, causation, and damages. Huynh v. Phillips, 95 So.3d 1259, 1262 (¶9) (Miss. 2012).  An issue comes up at times of what injuries is the Defendant liable for?   The answer seems to be all injuries that are foreseeable.  An issue I am currently working on involves the negligence of a defendant and potential medical malpractice resulting from treatment of the injuries.  There is very limited law in Mississippi on this issue.  Other jurisdictions have held that the original defendant may be liable for the third party malpractice since the injuries are foreseeable but the defendant may have the ability to file a claim for offset against the third party defendant. 

Different Standard to Modify Joint Custody

In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

Traditionally, Mississippi law has held that, "a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody." Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996). In Riley, the supreme court created a narrow exception to this principle. Id. This exception applies if the custodial parent's home environment is found to be contrary to the child's best interest and the non-custodial parent's home environment has improved and surpassed that of the custodial parent, so that it is now in the child's best interest to live with the non-custodial parent. Id.

I was reading through Mississippi Code Annotated 93-5-24 for a case and noticed section 6 of the statute which provides that "(6)  Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred."   I started thinking about this and realized that on joint custody under this statute all that has to be shown is a change in circumstances which creates a lower burden of proof (i.e. no effect on child needed).  The Court will still have to apply the Albright factors it still seems to be an easier burden. 

Abuse and Neglect

Abuse and neglect in a custody proceeding is something to take serious.  However, what constitutes abuse and/or neglect?   It may sound simple, but it is really not.  On a case a few days ago, myself, opposing counsel, and the chancellor were having a discussion regarding this very issue.  Technically, an child support or custody case could be an abuse or neglect issue because in contested proceeding the main issue is normally that one parent does not take as good of care of the child as another parent.  In Johnson v. Johnson, 872 So.2d 92 (Miss. Ct. App. 2004), the Court of Appeals held that the chancellor has some discretion to determine if abuse and/or neglect is a legitimate issue even when raised in the pleadings.  I started looking for a definition of abuse and/or neglect as defined in Mississippi Code Annotated 93-5-23 and it referenced me back to Section 43 of the Mississippi Code. 

Mississippi Code 43-21-105 defines an abused or neglected child as follows:

(l) "Neglected child" means a child:  (i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or (ii) Who is otherwise without proper care, custody, supervision or support; or (iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether said mental condition be mentally retarded or mentally ill; or (iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.  (m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. Provided, however, that physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.

The definition do not help a ton in my opinion as they are rather vague.  However, I do believe there needs to be some balancing act over what constitutes a true situation or abuse and/or neglect as opposed to just bad parenting.  This is especially true in light of Mississippi Code Annotated Section 93-5-23 which requires the other side to pay attorney's fees with the accusations are found to be "without foundation".  I previously talked about the problems of the definition of "without foundation" here.

Dismissal for Failure to Prosecute

I previously talked about dismissal as a sanction here.  On Tuesday, the Court of Appeals addressed this same issue in the context of failing to prosecute a suit after if was filed in Cornelius v. Benefield, et. al. located here.  The main issue of the case was whether the delay of the Plaintiff in prosecuting the case prejudiced the defendant to the extent that dismissal was appropriate.  The trial court said yes and the Court of Appeals affirmed.  However, four (4) judges dissented saying that the sanction was too harsh under the circumstances as the issue appeared to be problems with the Plaintiff's attorney as opposed to the Plaintiff.  Cases like this are why I hate for cases to sit too long.  This only further adds to the attorney paranoia. 

Arbitration

Arbitration is typically used by a large number of companies to circumvent trial by jury.  It has its good points and its not so good points in the event the other party has the choice on determining the arbitrator.  Contrary to popular belief, there are ways around arbitration clauses.  Among them is unconscionability.  "Unconscionability has been defined as 'an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.'" Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (¶11) (Miss. 1998) (quoting Bank of Ind., Nat'l Ass'n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss. 1979)). There are two recognized types of unconscionability— "procedural and substantive." Taylor, 826 So.2d at 714 (¶13) (quoting Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655, 657 (S.D.Miss. 2000)).  Additionally, I have seen issues where there was legitimate provable fraud in inducement of the agreement where terms were filled in after a party signed.  This often happens in nursing home litigation for some reason.  Never think that you are stuck with arbitration, just because there is a contract for it.  The underlying facts may render the whole thing void which additionally can play well in resolving a case. 

Regulations

There are lots of industries governed by various regulations.  Prime examples of both of them are the trucking industry, construction industry, and nursing homes.  Lots of times, a violation of these regulations can be a goldmine in establishing a negligence claim.  If you have one of these cases, look a little deeper than just the statutes.  You will often be rewarded.