Posts Tagged ‘equity’

Back to Square One: Revisiting “Maxims of Equity”

Saturday, November 3rd, 2018

What in the world is a “maxim” and how does this term relate to Mississippi chancery court proceedings? To put it simply, a maxim, within the context of custody and divorce law, is a truism that cannot be avoided. Maxims represent well-established principles of law and are deeply rooted in what the English legal system regards as law “agreeable to natural reason”. In other words, maxims are the highly regarded principles upon which chancery court finds its very core roots. Maxims are well-accepted as natural law, as opposed to law created by legislative proclamation or executive fiat.

The following is not a comprehensive list of the well-established maxims of equity have been utilized in each and every chancery proceeding, rather a short and palatable version of the ones seasoned chancery lawyers most often argue. Most apply in every case to some extent or another. They are, in no particular order, as follows;

  1. Chancery courts aid those who are vigilant. Those who rest on their rights and fail to act quickly to protect them are often barred by the doctrine of “laches”, which essentially curtails certain rights if they are sought after unreasonable delay. This concept is distinguishable from statutes of limitation and no specific numeric time period applies. The standard is highly subject to interpretation of what constitutes reasonable delay. Each court can interpret this concept much differently.
  1. One must have “clean hands”, or be relatively faultless in order to seek the intervention of the court. Although perfection is not required, those who have violated court orders and acted with virtual impunity are often shown the door-quickly. The court will not aid those who violate basic principles of fairness.
  1. The opportunity to be heard is not unique to divorce and custody proceedings, however, those fundamental rights elaborated by the 5th and 14th Amendments to the U.S. Constitution are given significant preference in terms of being chancery due process of law. Opportunity to be heard is soundly fundamental.
  1. Substance takes precedence over form. Although to a certain extent this shift in procedural dynamics has also been seen in damages/non-equity courts, the transition away from fact pleading and toward notice pleading is even more visible in courts of equity (chancery). Intent is more valuable than form of pleadings.
  1. All wrongs have a remedy, even if no statute prohibits specific conduct. Generally, and going back to 8th grade civics class, the legislature makes laws that are then interpreted by the judiciary. In equity courts, strict adherence to legislative proclamation takes a back seat to redressing all wrongs. A particularly pointed example of this function is when a party has failed to specifically make a claim that is within the general subject matter of the litigation but the opposing party is well-aware of the potential for liability. Often after a pleading is filed but prior to trial, facts and circumstances change. The court is not often inclined to hold you to a rigorous standard when this simple oversight occurs.

In summation, Mississippi chancery courts exercise broad authority in determining all matters that come before them. Chancellors have broad discretion and will exercise them to the benefit of fairness. Strict rules of pleading are not par for the chancery course. Although most litigants are willing to deal with the stress of domestic law, often a simple path remains elusive to those who are charged with excessive emotion. If you have a chancery court matter and need some fair advice from a seasoned litigator, feel free to give us a call.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in domestic conflict management. He is a single father and extremely passionate about the best interests of children.

Don’t Just Ask for a Restraining Order

Sunday, April 22nd, 2018

Have you been physically assaulted by your spouse or the father (or mother) of your child? Have you contacted the local police and other authorities regarding the abuse? Oftentimes children are the primary victim of their own parents’ hatred of one another. If your children have witnessed one or more incidents of physical abuse, they are likely viewed by Mississippi law as victims of abuse and neglect themselves and have multiple avenues of recourse. While courts with criminal jurisdiction such as Justice Court, County Court, and Municipal Courts are able to provide you with a peace bond or other means of restraining your spouse/opposing parent from the harassment and stalking that so often accompanies domestic abuse, they have severe limitations.

Unfortunately, the separation of powers between the various types of courts in Mississippi can present additional challenges to the actual victims of domestic abuse. Mississippi Chancery Courts are of limited jurisdiction of all matters set forth in §159 of the Mississippi Constitution of 1890. The State of Mississippi is comprised of twenty (20) Chancery Court Districts (see §9-5-3, Mississippi Constitution, 1890). There are six (6) specific subject-matter areas in which Chancery Court exercises exclusive, complete, and ongoing jurisdiction, including “All Matters in Equity” and “Minor’s Business”. “Equity” is an often confusing and misinterpreted term. According to Black’s Law Dictionary (Seventh Ed.), equity has a four part definition, the first two of which are particularly telling as to the depth and breadth of Mississippi Chancery Court subject-matter jurisdiction. First, Black’s asserts that equity is “Fairness, impartiality, evenhanded dealing”. Secondly, It is “The body of principles constituting what is fair and right; natural law”. Clearly equity isn’t a lucid concept, rather a notion that is reflective of available recourse as to principles of justice.

Victims of domestic violence are able to obtain relief from Chancery Court per the procedure set forth in Mississippi Code Annotated §93-21-3 as well as those governed by Mississippi Rule of Civil Procedure 65. As codified, the victim of domestic violence, married or unmarried, may go so far as to award the abused parent possession of the home or to require that the perpetrator provide adequate housing including utilities and other related expenses. Also, Chancellors are empowered by statute to encumber jointly held assets and make adequate provision for the care and support of minor children as well as the victim. Custody of the children, child support, and visitation are all within the realm of properly exercised equitable judicial discretion. Equity permits that Chancellors have broad authority in the spirit of protecting those who cannot protect themselves.

In short, Mississippi Chancery Courts are empowered by legislative proclamation to address a variety of issues that adversely affect children, as they too are considered victims of domestic abuse. Often it is assumed that a court other than Chancery Court is able to afford domestic violence victims some level of redress outside of the scope of a restraining order itself. However, as previously stated, the exclusive nature of Chancery Court jurisdiction as to “Minor’s Business” and “All Matters in Equity” precludes other arms of the judiciary from ordering such relief to victims.

The victim of domestic violence not only is afforded relief in various forms both equitable and by statute, but retains significant advantages in the determination of both temporary and physical custody. Mississippi Code Annotated §93-5-24 provides in pertinent part that;

“there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest (i.e. in regards to the commonly cited Albright v. Albright factors) of the child to be placed in the sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered. This presumption may only be rebutted by a preponderance of the evidence.”

It is clear that victims, parents and children alike, are afforded significant protections from those who would harm them. Although the presumption that violence perpetrators are not proper custodians or decision-makers for a child may be overcome it presents a sufficiently robust obstacle to those persons who have been restrained, enjoined, or otherwise found civilly liable for home-trauma. To be clear, the ball is not in the abuser’s court. Our office is fully able to address all of the challenges that domestic violence creates.

If you or someone you care about is a domestic violence victim and is in need of an attorney with experience as to the best path forward, my staff and I are ready to provide you with the resources to obtain justice. Our office exclusively handles domestic litigation and is unlike so many other firms who lack the client base to remain focused on these matters. We have 14 years of experience in this sub-category of Mississippi law and the will, desire, and knowledge to ensure that equity will be done.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

No Law Degree Needed to Know What’s Fair

Wednesday, April 18th, 2018

Many lawyers will tell potential clients that immediate action is needed to protect their rights and that they need to file a lawsuit now. This is often correct, as claims often go stale and witnesses forget what they have seen. However, in domestic relations law, sometimes the best practice can be resisting the urge to file a lawsuit and go to war.

Chancery courts are courts of equity, which means that the chancellors of those courts will seek to rule in a way that is the fairest to both parties. This allows clients who are not familiar with the process of a lawsuit to do a lot of the ground work themselves or through their attorneys. You do not need a law degree to know what is fair. Our office often receives calls from potential clients who have not talked to the other party about the situation, when that actually may be the best course of action.

Of course, sometimes lawyers may be more aggressive about starting a case than they should be. The thought process is that maybe the other side will realize what an inconvenience a lawsuit is and will be open to settling. While this may work sometimes, it seems like an unnecessary step in getting to what’s fair. Those two parties who once shared a bond or perhaps still share a child can only benefit from at least trying to communicate about what is fair to make it easier on everyone involved.

If you believe that a lawyer you meet with seems hell-bent on filing a lawsuit to get you what’s fair, you may want to speak to a different lawyer. When you leave that lawyer’s office, you should not feel as though you must file a lawsuit or they will not help you. Some parties only need the advice from a lawyer to try to talk to the other person, and in most situations it is worth the time and effort to try that. Otherwise, the nasty back-and-forth of a lawsuit will drain the time, resources, and emotions of the parties.

The lawsuit is a great thing that allows Americans to seek redress of the wrongs done to them. However, this process can also be abused. In chancery courts, where equity is king, sometimes the best option is to talk it out. If you visit a lawyer who seems to not consider that an option, a second opinion may be just what you need. If you or someone you know is going through a situation like this, call the Law Office of Matthew S. Poole. We have the experience in these matters and will give you an honest answer as to all of your options.