Do children have a claim for alienation of affection?

The traditional law of alienation of affection cases is somewhat straight forward.  

The tort of alienation of affections was recognized in Mississippi as early as 1926 in McRae v. Robinson, 145 Miss. 191, 110 So. 504 (1926). In Camp v. Roberts, 462 So.2d 726, 727 (Miss. 1985), this Court held “[w]here a husband [wife]  is wrongfully deprived of his rights to the ‘services and companionship and consortium of his [her] wife [husband],’ he [she] has a cause of action ‘against one who has interfered with his [her] domestic relations.’

Fitch v. Valentine, 959 So. 2d 1012, 1018-1019 (Miss. 2007). While there have been a couple of cases which successfully joined the paramour’s employer, parties to these cases have typically lined up as the wronged spouse vs. the paramour.

Today, the Mississippi Supreme Court will hear oral argument in Dr. Charles Ronald Brent v. Vennit Mathis, et al concerning a difference type of plaintiff in an alienation of affection case…..children that have their family ripped apart due to the wrongful actions of someone intruding in their parents’ marriage.  If you are interested in such cases, you can watch the argument before the Court here.

Dr. Brent claims, among other things, that the children lack standing to pursue a claim.  A problem Brent may have with that argument is his deposition admission acknowledging that the marital relationship and children of the marriage can be harmed by an affair.  The foreseeability of that harm may bite Dr. Brent.  Likewise, his “eatin aint cheatin” remark isn’t going to sit well with the Court or jurors.  As noted by Philip Thomas, defendants have a poor track record in these cases.  Dr. Brent had best get his checkbook out.    

h/t to Jane Tucker.  Without her blog about the happenings before the MS Supreme Court and Court of Appeals, I probably wouldn’t have heard of this case until the opinion came down.  

Words that aren’t in the Constitution

Chris McDaniel is widely quoted as saying “The word ‘education’ is not in the Constitution. Because the word is not in the Constitution, it’s none of their business…”   This sounds interesting but what if we expand that line of thinking?

There are 4,440 words in the Constitution.  What other words aren’t mentioned in the Constitution?

  •  “Guns” and “Ammunition”  – not in the Constitution.  Can I get a tank?  What about a ballistic cruise missile?  They aren’t mentioned, so it must be none of their business.
  • “Liberty” is mentioned once.  Do we only get it once in our life or does that mean it isn’t very important?
  • “Adultery” isn’t mentioned so it must not be “their business.”
  • “Abortion” isn’t mentioned.  Must not be of any import.
  • “Gay” or “homosexual” – neither are in the Constitution.  Are they “none of their business.”
  • “Hunting” or “fishing” isn’t mentioned.  Must be nothing.
  • Neither “drug” nor “alcohol” is mentioned.  Must not be any of their business.  Crack and heroin for all.
  •  “Driving” isn’t mentioned.  I guess I should be able to drive at whatever speed I find appropriate.
  • Pornography isn’t mentioned.  Is protecting our children from that really none of their business?  Seriously?
  • “Income” isn’t there.  Please tell the IRS that isn’t any of their business.
  • “Church” and “Religion” aren’t there.  “None of their business” if government decides we pray to Mecca?
  • “Democracy” isn’t there a single time.  Anyone’s business?
  • “Military” is mentioned 7,323 times…..I mean zero.  Guess we don’t need one?

These examples are truthful, but yet prove nothing about our country or our beliefs.  So what words are in the Constitution?

“Vote.” It is mentioned 15 times.  Use it wisely in this election for #mssen

A few funnies from the #MSSen race

  1. Thad Cochran grew up doing “all kind of indecent things with animals.”  What?  You can’t be serious.  Cochran’s attempt at a joke was weird even for political standards.  Lesson for future politicians……even if you are in the pine belt, don’t make jokes about stump breaking cows or goat ropings.
  2. “I couldn’t pick one of them out of a lineup with the Spice Girls.”   Haley Barbour speaking about the leaders of national groups supporting Chris McDaniel.  Funny, but Barbour knows his enemies as well as you or I know our pinky toe.
  3.  “Mamacita works….I’m an English-speaking Anglo. I have no idea what it means, actually, but I’ve said it a few times, just for, you know, fun. And I think it basically means, ‘Hey, hot mama.’ Or, you know, ‘You’re a fine looking young thing.’”  Chris McDaniel trying to fill some airspace on his old radio show.  I would have figured that McDaniel planned on running for office since birth and would have tailored his remarks more carefully.  Guess not.
  4. “The McDaniel campaign, they seem to always be on the wrong side of a door.”  Haley Barbour talking about McDaniel staffers being locked in the Hinds County courthouse at 2:00 a.m.  Zing!  Barbour has a razor tongue with the one liners, but his political power appears to be slipping.  Who would have thought there would be a close race between a State Senator supported largely by national figures/money and a six term United States Senator supported by virtually every Republican holding state office from the Governor down to local mayors?

With every passing year the money pumped into elections grows exponentially.  A recent report shows $15.6 million has been spent in this one race and there is a week left before the runoff.  With that kind of money involved someone is always there to record every step and misstep so expect a few more funny quotes to pop up.

Bad choice of words

A few stories caught my eye today.  First up comes from NRA-ILA.  That’s the National Rifle Association Institute of Legal Action.  They are hardcore supporters of the 2nd Amendment so it came as a bit of a shock when a news release on their website stated:

Yet while unlicensed open carry of long guns is also typically legal in most places, it is a rare sight to see someone sidle up next to you in line for lunch with a 7.62 rifle slung across his chest, much less a whole gaggle of folks descending on the same public venue with similar arms.

Let’s not mince words, not only is it rare, it’s downright weird and certainly not a practical way to go normally about your business while being prepared to defend yourself. To those who are not acquainted with the dubious practice of using public displays of firearms as a means to draw attention to oneself or one’s cause, it can be downright scary.  It makes folks who might normally be perfectly open-minded about firearms feel uncomfortable and question the motives of pro-gun advocates.

The NRA received more than a wee bit of flack for criticizing open carry of long guns.  Apparently so much flack that Chris Cox, chief lobbyist for the NRA issued a statement saying “It was a mistake” and “it shouldn’t have happened.

Second up is David Charron.  Charron, a business lawyer, had already been held in contempt by a Michigan trial court for transferring assets of a business in violation of a trial court order.  Charron doubled down in appealing the contempt order by stating in the appeal “When the judiciary acts as the bitch for complainant, we get rulings like this.”  Ouch.  Regardless of whether or not that was in fact the case, a bit of tact is always in order when describing a trial court’s behavior to an appellate court.    The Michigan Court of Appeals took issue and hit him with a $1,000 reminder that such language was inappropriate.

Finally, back at home here in Mississippi I see Madison County Justice Court Judge Bill Weisenberger accused of striking a mentally challenged man and saying “Run, n—–, run.”  If this is true, I can’t imagine what in the world Weisenberger was thinking.   That is even more outrageous than the Florida judge that told a public defender to stop “pissing him off and just sit down” and then told the attorney he would take him out back and “beat his ass.”

Lessons from the above:

  1. Don’t bite the hand that feeds you.
  2. Don’t use the word “bitch” in a legal brief unless a female dog is involved.
  3. Don’t be a racist.
  4. Don’t threaten to whoop anyone’s ass in court.

A few stories that don’t involve the election

  • 41 people charged with car-deer insurance fraud.  Police officer, insurance adjusters and a body shop owner were among those arrested in the five million dollar scheme where “deer hair, blood, carcasses and weeds and grasses gathered by Galati’s employees were used to stage what he called “Hollywood photos” of the bogus accident.”
  • New deer regulations in Mississippi allow shooting more than one doe per day on private land and remove the requirement of hunters’ orange if the hunter is 12 feet or higher in a tree.  Also, “weapon of choice” for deer season on private land after November 30 passed.  Due to the November 30 date, the first primitive antlerless only season in early November will be excluded.
  • The Mississippi Insurance Department issued Bulletin 2014-4 dealing with rejection of uninsured motorist coverage.  More than 1 in 4 drivers on Mississippi roads are uninsured.  If you get injured by a vehicle due to the negligence of someone with no or little insurance, then your UM insurance can pay for your medical bills, loss of wages, and pain and suffering.   Compared to other types of insurance, UM is very cheap.  Buy UM, get all you can up to the limits of your liability limits and NEVER reject UM coverage.  Protect yourself and protect your family.  Given that 28% of Mississippi drivers do not have auto insurance, you are risking your financial future every time you drive if you do not have adequate uninsured motorist coverage.  Expect to see a form similar to this when your car insurance renews:

The purpose of bond

Joshua Adams is the Hinds County deputy charged with murder in the death of Justin Griffin.  The story has been on the news most every night since their altercation of May 4.  A video of the fight was subsequently released.  I am no expert on fighting, but it would appear reasonable people could differ in their interpretation of the video and which person was the aggressor.  Since the death of Mr. Griffin on May 5, Mr. Adams has been jailed without bond.

WLBT is reporting that Circuit Judge Winston Kidd set bond today at $50,000 with some additional conditions.  Many of the responses from viewers on WLBT’s website and facebook page show a lack understanding in the purpose of a criminal bond.  Bond isn’t to punish the accused, but rather to secure the presence of the accused at trial.  Simple as that.  Punishment is reserved for when and if Mr. Adams is convicted.  Until then, Mr. Adams is presumed innocent.

Medical care for the military

For the last week or better, the nightly news broadcasts have carried stories about sub-standard care provided to our country’s veterans at the VA Medical Centers.  Reports include a  vet with chest pains told to wait 3 or 4 months and vets dying from delays in treatment and diagnosis.  Congressional leaders are in Jackson visiting the G.V. Sonny Montgomery VA Medical Center to investigate these complaints.

The fact that veterans are receiving substandard care is inexcusable.  These men and women voluntarily placed their lives on the line for country when we needed help.  When they need help from our country we should provide it to them in a timely manner and with world class quality.

It is ironic that while veterans that served their country honorably are denied or delayed medical care, a convicted traitor is apparently about to receive a transfer from a military prison to a private prison so he can receive hormone therapy to live like a woman.  Bradley Manning who now refers to himself as Chelsea Manning, was convicted on multiple counts of Espionage Act violations after he caused what has been called the largest set of classified documents ever to be released the public.  The day after the conviction, Manning released a statement through counsel stating that he was a female, had felt that way for a long time and wanted to begin hormone therapy.

That is all well and good.  I couldn’t care less if Manning receives hormone therapy.  However, if we can provide treatment for him then surely we can provide care to the men and women that made the sacrifices necessary to serve our country honorably.

A bad day on the water

Spring is here bringing with it slowly rising air and water temperatures.  As a result, more and more people are headed to local lakes and reservoirs for boating activities.  If you are one of them, be careful.  Mississippi requires persons born after June 30, 1980 to complete a Boating Safety Course to operate a boat.  So anyone roughly under the age of 34 should have taken a basic safety course to drive a boat.  

On the other hand, most anyone you see driving a boat over the age of 34 probably hasn’t taken the class.  Regardless of the safety class, boaters must also be on the lookout for other boaters driving while impaired.  Pursuant to Miss. Code. 59-23-5 ” A person who operates a watercraft in waters over which this state has jurisdiction shall be deemed to have given consent to submit to a chemical test or test of his breath for the purpose of determining the alcohol content of his blood, as a condition of operating the watercraft in this state.”  This is basically the boating version of the implied consent law applicable to motor vehicles on public roads.  Miss. Code 59-23-7 states:

It is unlawful for any person to operate a watercraft on the public waters of this state who:

   (a) Is under the influence of intoxicating liquor;

   (b) Is under the influence of any other substance which has impaired such person’s ability to operate a watercraft; or

   (c) Has eight one-hundredths percent (.08%) or more by weight volume of alcohol in the person’s blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter.

Some are under the mistaken belief that a boater can’t be charged with boating under the influence unless the blood alcohol content is .08 or greater, but the statute clearly has an “or” between sections (b) and (c).  This means it is unlawful to operate a boat under the influence of alcohol or any substance which impairs the ability to operate the watercraft or if the operator has .08 blood alcohol content or greater.

The Mississippi Supreme Court handed down the case of Hardy v. State of Mississippi, NO. 2012-KA-01970-SCT yesterday where an individual with a blood alcohol content below the legal limit was convicted.  The facts were tragic.  Brad Hardy was driving a small boat while standing up.  A witness testified:

Hardy came around Dead Man’s Curve and just turned . . . and hit the bank and went up onto
the bank . . . . He hit some boats, and then hit the bank, went up on the bank, and the boat
landed between two trees on the other side of the river.

The witness also testified “she overheard a little girl on the bank scream ‘you killed my daddy.'”   Hardy admitted drinking six beers, but was .01 below then then legal limit of 0.10 (now .08).  Nevertheless, Hardy was convicted of aggravated boating under the influence and manslaughter by culpable negligence.  The trial court sentenced Hardy to forty-four years with twenty-six to serve.  The Mississippi Supreme Court upheld the verdict and sentence.

This case brought back memories from seeing a friend die at almost the same location close to Ratliff Ferry over ten years ago.  My friend jumped off of the back of a pontoon boat.  As he swam in the Pearl River toward a sandbar, two ski boats rounded a curve at a high rate of speed following each other.  The first boat narrowly missed him.  Seconds later we heard the loud thud of the second boat striking my friend.  The propeller sliced up his body starting at his ankle and ending at his neck.

The boat operator in that situation was accompanied by his wife and small child.  I don’t know if he was ever charged or convicted, but he did have some amount below the legal limit of alcohol in his system when the Mississippi Department of Wildlife Fisheries and Parks officer administered the breathalizer.  I will never forget seeing the muddy brown water of the Pearl turn blood red.  A mother lost her son, a brother lost his brother and many of us lost a friend.  It was a bad day on the water.  I have never been back to that river and don’t intend to.

Be safe out there and watch out for the other guy.  He may be under the influence and he may have little or no training in the proper operation of a boat.

I thought stuff like this only occurred in the minds of law professors

From years ago in a contract or property class in law school I vaguely remember a professor describing a situation where a swimming pool was accidentally built at the wrong house.  Maybe it was supposed to be built at 101 Jones Street and instead it was built at 102 Jones Street.  If I remember correctly, the general rule of whether the owner of the pool had to compensate the pool builder for building the pool hinged on whether or not the landowner had knowledge of the pool construction and failed take action to notify the pool builder.  I could be wrong so don’t quote me on that.

In any event the only thing I could think of while the professor was lecturing away on the concept was “what kind of moron builds a pool in the wrong backyard?”  I really didn’t think it was possible and figured it was just something the professor made up to illustrate a point.

Fast forward to 2009.  Residential Advantage Development (RAD) acquires a piece of property in Jackson and decides to build a home on the lot.  Unfortunately, RAD builds a home on Lot 20 instead of Lot 21.  Lot 20 is owned by the Ross Family.  Sometime around completion of the construction, RAD decides to finally get around to a survey and figures out their nice new home is on the wrong land.

RAD then filed suit against the Ross family seeking to have the court force the Ross family to sell the land to RAD for the cost of the unimproved lot (the cost of the land before the house was mistakenly built).  In a decision sure to assist in teaching property and contract lawyers of the future, both the trial court and the Mississippi Court of Appeals turned down RAD’s legal theories.

There is no dispute that RAD will suffer financial loss based on the chancery court’s decision; however, based on our standard of review, the evidence in the record, and the relevant case law, we cannot find that the chancery court abused its discretion in granting the Ross family’s request for injunctive relief and denying RAD’s motion to alter or amend the judgment.

Long story short…….RAD has incurred the cost of building a home and their attorney’s fees for a trial in Chancery Court and an appeal to the Court of Appeals.  Now they get to pay the costs of tearing down the home and repairing the lot to its undisturbed condition.  That isn’t so RAD, but I suspect some law professors will find it humorous.

Gone fishing

From the 1960 Missouri Court of Appeals case of Moore v. Moore:

We will agree with respondent in his
definition of Stone County freedoms that a husband
has a right to go fishing. And we will go further
and say that this right extends to fishing without the
constant and ever-present impediment of female
presence and participation, if such be against the
will of the husband. It is a wise wife who accords
her husband that freedom–in moderation–and a
foolish wife who interferes.

 

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