Divorce Grounds Divorce in Mississippi By agreement Irreconcilable

Divorce Grounds

Divorce in Mississippi By agreement (Irreconcilable differences) On fault-based grounds – requiring corroboration Is the Mississippi divorce statute unconstitutional as an infringement of the right of privacy? (See Gerty v. Gerty, 265 So. 3 d 121, 131 (Miss. 2018).

Adultery Bradshaw v. Bradshaw – A spouse’s invocation of the Fifth Amendment does not, in itself, prove adultery. Invocation of the Fifth Amendment may, in connection with other evidence, prove adultery. MS – Cohabitation (a sexual relationship combined with spending several nights a week together) is a crime.

Habitual, cruel, and inhuman treatment Russell v. Russell, 128 So. 270, 272 (Miss. 1930) • Conduct so brutal and unfeeling that it endangers the plaintiff’s life, limb, or health • Conduct so unnatural and infamous that it makes the marriage repugnant to the plaintiff spouse

Divorce based on physical abuse Anderson v. Anderson – Divorce granted based on multiple incidents of physical violence; corroborated by mother and son. Johnson v. Johnson – Divorce granted based on ongoing emotional abuse and control, combined with one incident of physical violence; corroborated by mother and friend.

Divorce based on emotional cruelty Littlefield v. Littlefield – Divorce granted based on ongoing emotional abuse and control, threats of suicide, physical restraint, stalking; corroborated by mother. Bradshaw v. Bradshaw – Divorce denied; husband’s inattention, earlymarriage absences and “silent treatment” were not cruelty.

Client facts: • Emotional abuse: outbursts of anger, throwing furniture and breaking objects, controlling behavior (financial matters, monitoring communication), insisting that she not work, unreasonable demands, unfounded accusations of infidelity • Physical abuse: one incident of violence; he threw her down the stairs • No corroborating evidence of violence or emotionally abusive behavior

Spousal domestic abuse Physicial: Spouse “attempted to cause, or. . . caused bodily injury to the injured party, or. . . put the injured party in fear of imminent serious bodily harm. ” Non-physical: Spouse engaged in a pattern of behavior “of threats or intimidation, emotional or verbal abuse, forced isolation, . . . [that] rises above the level of unkindness or rudeness or incompatibility or want of affection. ” Miss. Code Ann. 93 -5 -1. No requirement of corroboration.

Emotional abuse Wangler v. Wangler Divorce denied under spousal domestic abuse ground. Husband’s arguments into the night, causing sleep deprivation; physically removing wife to bedroom; accusations, and control of communications (taking keys, phone, shutting off internet) were not sufficient evidence of emotional abuse or forced isolation. Pleading habitual, cruel, and inhuman treatment includes spousal domestic abuse.

Physical abuse Alexis v. Black DAPO statute definition of abuse as causing “bodily injury” was proved by a single incident of physical violence, even if the injury was minor. Even if abuse is proved, a court may deny an order of protection if the abuse has ceased and the plaintiff no longer fears the defendant. Spousal domestic abuse is defined identically to abuse under DAPO statute – as “causing bodily injury. ”

Custody MS – presumption against custody to a parent with a history of family violence A history of family violence may be a pattern of violence or a single incident that causes serious injury. Warner v. Warner: A mother who obtained an order of protection was not entitled to modify custody based on the presumption. A single incident causing minor injury is not sufficient to trigger the presumption.

Property Division Equitable distribution: Adopted 1994

Marital property • Acquired during the marriage • Through efforts of one of spouses • Separate property: • Acquired before marriage • Acquired by gift or inheritance • Passive growth on separate property

Separate property converts to marital through • Family use • Commingling • Spousal efforts that increase value • Use of marital funds • Loans secured by marital property • Loans on which other spouse is obligated

Conversion cases Crew v. Tillotson – Husband proved gifted company remained separate - no commingling, marital funds, family use, marital loans, or spousal efforts. Williams v. Williams – No tracing to show that wife used separate property funds to purchase boat and airplane; classified as marital, based on the presumption that all funds are marital.

Conversion by commingling Majority line of cases (broad commingling): When separate funds are mixed with marital funds in an account or asset, the separate funds are converted to marital. Outliers (tracing permitted): Bradshaw v. Bradshaw – husband’s separate property rental income, deposited into a joint account with marital funds, was “easily traceable” and not converted to marital.

Valuation in Mississippi MS: No goodwill in divorce valuation – requires using net asset method All other states – valuation in divorce includes enterprise goodwill Alford v. Alford – Should discounts for lack of marketability be used in net asset valuations?

Proof of business value Chism v. Chism – Expert proof of business valuation is needed where • The asset is substantial • The asset is a significant portion of marital estate • NO evidence of value is presented by the parties

Division – the role of fault • MS – fault is a factor • Johnson v. Johnson – Not error to award a wife 50% of assets in spite of affairs; husband was also at fault. • Ellison v. Ellison – Remanding award of 60% of assets to wife (based on separate property contribution) for failure to consider husband’s adultery.

Alimony and Social Security • Harris v. Harris – derivative Social Security benefits are not a dollar-fordollar offset against alimony; court looks at all circumstances of the parties to determine whether an unforeseeable material change in circumstances has occurred. • Foreseeability - Some cases have denied modification if a particular event was foreseeable (such as leaving a current job). • Alford v. Alford - Court of Appeals: If Social Security benefits are imminent (foreseeable), chancellor should consider future receipt in setting alimony.

Forseeability after Alford • A payor must show a material change in their OVERALL circumstances that alters their ability to pay alimony or child support. • It is the overall change that is considered “unforeseeable” – not one particular event such as receipt of Social Security benefits.

Health insurance as alimony • Griner v. Griner: • Health insurance is a form of alimony and need not be separately requested. • The husband was ordered to pay for his wife’s health insurance for 18 years. • See Tillman v. Tillman, 791 So. 2 d 285, 288 (Miss. Ct. App. 2001). An order for a spouse to pay out-of-pocket health insurance costs as alimony must include a maximum amount; otherwise an increase in the obligation is an unapproved upward modification.

The changing role of alimony § 1994 - MS Supreme Court adopts equitable distribution § 1980 s - Gender equality alters husband’s duty to support wives § 1995 - Short-term, rehabilitative alimony added § 1977 - Irreconcilable differences divorce not based on fault

Alimony guidelines trends • Recognize long marriages as 20 years and over • Impose limits on length of award (often one half of marriage length) • Some impose limits on the amount of the award, for example • maximum 30% of disparity between spouse’s income • $5, 000 or 20% of payor’s income, whichever is less

Alimony Chart • Marriages under 10 years, 10 to 19 years, and over 20 years • Permanent, rehabilitative, lump sum, none awarded • Factors: Ages, children/custody, child support, fault, incomes, marital property award, alimony award, disparity between incomes • Reversals

Calculating size of award • To what extent does the award close the disparity gap between spouses? • H: $8, 000/month net income; W: $2, 000/month; H: Child Support of $1, 000/month • Disparity: $5, 000/month • Award: $2, 000/month permanent • Award closes disparity gap by 40% (an award of 50% equalizes incomes)

Type of alimony awarded Type awarded Under 10 years 10 – 19 years Over 20 years Permanent 20% 54% 70% Rehab or lump sum 50% 36% 14% No alimony 30% 15%

Amount of award Under 10 years 10 – 19 years Over 20 years Over 50% 0 4% 17% 25% - 50% 0 33% 45% Awards under 25% 100% 63% 38%

Rehabilitative awards • Range from six months to six years • Awards in last decade tend to be longer • Amount of awards 88% under 25% of disparity

Custody

Custody between parents • Primary test: Parental equality/best interests test, based on the Albright factors • Exception: Presumption against custody to a parent with history of family violence (one incident causing serious injury or a pattern of family violence)

Types of custody • • Joint legal custody, one parent with sole physical custody Joint legal and physical custody Sole legal and physical custody in one parent Sole legal custody in one parent, joint physical custody • A court may order joint physical custody whether or not a parent requests it. • Avants v. Hamilton (five-judge concurrence) - there should be a presumption of joint physical custody between fit parents who live in the same location.

Parenting time by state https: //www. custodyxchange. com/maps/dads-custody-time-2018. php

The Albright factors • Lee v. Bramlett – Custody awarded to father/offshore worker over stay-at-home mother; not a de facto joint custody award to his parents who would provide 50% care • Kaiser v. Kaiser – Custody to mother based on father’s interference with her visitation for three months • Sanders v. Sanders – father’s concern about international abduction properly addressed by providing him with passport

Visitation • MS standard visitation – every other weekend (Friday – Sunday), four to five weeks in summer, alternating holidays • Williams v. Williams – visitation appropriately denied to mother who alienated high school senior son (at boarding school) • Thomas v. Thomas - visitation of three weekends a month to noncustodial father

Modification between parents The petitioner must show 1. A material change in circumstances in the custodial parent’s home; and 2. an adverse impact on the child; and 3. That a modification is in the child’s best interests.

The adverse impact requirement • Butler v. Mozingo – A mother’s five moves in two years did not adversely impact her child; error to modify custody • Jackson v. Jackson – A mother’s report of possible sexual abuse by the father did not adversely affect son; proper to deny modification • Barbaro v. Smith – mother’s falsification of toddler’s drug test and planting drugs in father’s truck was sufficient to require modification without an immediate adverse impact

Modification based on parental behavior • Hays v. Hays – Custody was properly modified based on mother’s unsubstantiated sexual abuse allegations, unsubstantiated domestic violence accusations, ten instances of denying visitation, and alienation of child – in one year. • Wilkinson v. Wilkinson – Mother’s poor behavior (profanity toward father in front of child, running into his truck with her car) did not require modification; the exes were in a “toxic love-hate relationship” in which both behaved badly.

Custody between parents and nonparents • Natural parent presumption – third party must prove that the parent abandoned or deserted the child or is unfit • Seale v. Thompson – A grandfather who cared for his grandchildren (in loco parentis) proved the father’s unfitness based on his prior incarceration and drug use, even though father was sober, employed, and paying child support.

In loco parentis – third parties as parents • In re Waites, 152 So. 3 d 306 (Miss. 2014) – Men who act in loco parentis are not elevated to parental status; must overcome the natural parent presumption. • Welton v. Westmoreland, 180 So. 3 d 738 (Miss. 2015) – Men who act in loco parentis are treated as parents if the biological father is not in the picture. • Ballard v. Ballard – A man who acts in loco parentis is on an equal footing with child’s mother in custody action in which the biological father does not appear.

Modification in third-party custody actions • When a parent is given custody in a third-party action, a third party seeking to modify must overcome the natural parent presumption in addition to proving a material change in circumstances in the parent’s home. • Garner v. Garner – A child’s step-uncle was awarded custody in a modification action with the boy’s mother - he proved unfitness and a material change in circumstances based on drug use, mental health issues, her failure to provide psychological care, unsubstantiated sexual abuse claims, and her violent marriage.

Grandparent visitation • Garner v. Garner – Step-grandparents are not entitled to visitation under the grandparent visitation statutes (statute refers to “parents” of a “parent). • Vermillion v. Perkett – A grandmother who only visited her granddaughter twice was not entitled to visitation based on her own child’s denial – she was unable to establish a viable relationship with the child.

Child Support

Lump sum child support • Chancellors may not award support in a lump sum. • Mc. Call v. Mc. Call - A payor may agree to pay a lump sum. The court of appeals affirmed an agreement to pay $3, 500 in basic support and $100, 000 lump sum. • Question: Would an agreement to pay lump sum only be affirmed, particularly if the recipient was seeking modification?

Deviations from the guidelines • A chancellor must support a deviation from the guidelines with findings of fact. • Adding health insurance and medical expenses to support based on the guidelines is not a deviation. • Adding private school tuition or daycare to support based on the guidelines IS a deviation.

Deviation based on parenting time • Thomas v. Thomas – A court deviated below the guidelines because the father had extensive visitation and would spend additional funds. • A court may order increased support when a noncustodial parent exercises LESS than usual visitation.

Children’s derivative disability benefits • Thomas v. Thomas – A child’s social security benefits based on the father’s disability are a dollar-for-dollar offset against his support obligation. • Benefits based on a child’s own disability are NOT an offset against the parent’s obligation.

Modification based on income loss • Mc. CAll v. Mc. Call • Lump sum child support is vested and cannot be modified. • A payor who was in default prior to his income loss was denied modification (possibly for lack of clean hands).

Agreement to pay “so long as I agree” • Collado v. Collado – a father’s agreement to pay for private school tuition “so long as both parties agreed” allowed him to refuse to continue paying. • The fact that he could afford to pay was not material.

Foreseeability • Martin v. Borries • A father’s decision to return from overseas oil company work with his new family was a voluntary reduction in income. • His return to the states was planned at the time of the prior order and was therefore “foreseeable, ” preventing modification. (Alford v. Alford should change this result).

Payor’s increased income • Most states – a payor’s increased income may be a material change in circumstances supporting modification upwards. • MS – in non-DHS cases, a custodial parent must prove the children’s increased needs IN ADDITION TO the payor’s increased income. • DHS may modify (up or down) based solely on proof of a change in income.

Forgiveness of arrearages • A chancellor may not forgive arrearages. • • • A payor may receive credit against arrearages - for direct payments for basic needs, - for derivative disability benefits paid to children, - if a child is emancipated, or - if the child is living with the payor. Wilkinson v. Wilkinson – a payor’s obligation was “suspended” when he and the child’s mother resumed a quasi-marital relationship.

Credit based on lump sum disability payments • Thomas v. Thomas – A payor’s $30, 000 in arrears could be offset by the portion of children’s $21, 000 lump sum payment – only for the months in which he was in arrears during the accrual of the lump sum. • Lump sum applicable to January 2012 – March 2015 • Arrearages accrued November 2014 – time of trial • Offset for benefits applicable to November 2014 – March 2015

Enforcement, Paternity, Adoption, Jurisdiction

Contempt matters • Civil contempt is designed to secure compliance with a court order. Punishment may be avoided by compliance. • Criminal contempt punishes noncompliance; penalties or incarceration are not avoided by compliance. • Persons facing constructive criminal contempt are entitled to procedural safeguards, including notice of charges, right to a hearing and to confront witnesses, and a finding beyond a reasonable doubt.

Criminal contempt Latham v. Latham: Recusal is required when a judge has substantial personal involvement in a criminal contempt matter. A party who does not request recusal or raise the issue at trial waives the opportunity to raise it on appeal.

Ambiguity as a defense to contempt Jones v. Jones: An agreement to pay one half of “any miscellaneous expenses which may arise” was too ambiguous and limitless to be enforced. Parties to a divorce agreement have a duty of good faith and fair dealing. A mother’s eight-year delay in presenting medical bills made it impossible for the father to comply with his agreement to pay bills within ten days of receipt.

Disestablishing paternity Diaz v. Dep’t Human Servs – A man was not entitled to disestablish legal paternity, even though he was not a child’s father, because he (1) Cohabited with the mother and assumed an obligation to support the child, knowing it was not his; and (2) Signed an acknowledgement of paternity and did not rescind the acknowledgment within one year.

Biological vs. Legal father Pope v. Fountain: A legal father (the mother’s ex-husband) with visitation and support obligations was a necessary party to a paternity and custody action between the mother and biological father. Under Ballard, the legal father would have to overcome the natural parent presumption to obtain custody.

Adoption – failure to include biological father Stacks v. Smith: Failure to name a known biological father in an adoption action is fraud on the court, allowing the court to set aside the adoption action even after the running of the statute of limitations. An adoption may be set aside after the six-month statute of limitations for jurisdictional defects, including failure to join a known biological father.

TPR Law In re R. B. – A chancellor is bound by a youth court’s finding in a permanency hearing that DCPS has made reasonable efforts to reunite the family. In re B. E. G. – A court was not required to provide a parent with notice of rights when a termination hearing was continued to another date; the statute requires that rights be provided at the beginning of the termination hearing, which the father did not attend.

Subject matter jurisdiction; res judicata Abercrombie v. Abercrombie – A litigant who fails to appeal is bound by the trial court’s finding of res judicata and may not subsequently raise the issue in a collateral proceeding. Crew v. Tillotson – A Mississippi court was not barred by res judicata from addressing equitable distribution, even though the Mississippi husband submitted to personal jurisdiction in the wife’s North Carolina divorce action.

Contact information For questions about the CLE presentations: Debbie Bell: dhodgesbell@gmail. com David Calder: davidcalder 23@gmail. com For materials or administrative questions: msfamilylaw@nautiluspublishing. com For technical assistance: msfamilylaw@nautiluspublishing. com

Thanks to Jaime Adams (Laura), Susan Mc. Phail (Lisa), and David Hamilton (Charles) for their portrayals of family law clients Wil Oakes at Oakes Creative for filming and editing Plein Air at Taylor for a beautiful filming location