Opinion
2024-TS-00849
12-05-2024
JUSTIN McPHAIL Appellant v. COLLETTE ELIZABETH (MUFFET) LEE McPHAIL Appellee
EN BANC ORDER
MICHAEL K. RANDOLPH, CHIEF JUSTICE.
Before the en banc Court is Justin McPhail's "Motion for Leave to Proceed In Forma Pauperis and for Enlargement of Previously Filed 'Notice of Intent to Appeal.'"
On June 17, 2024, the Chancery Court of Grenada County entered a judgment that was designated "a final Judgment as defined in Rule 54 MRCP, there being no just cause for delay." Judgment, McPhail v. McPhail, No. 22CH1:12-cv-132, at *4 (Grenada Cnty., Miss., Chancery Ct. June 17, 2024) (MEC No. 268). Four days later, on June 21, 2024, the chancellor entered two more orders. One relieved the guardian ad litem of further duties. Order, McPhail v. McPhail, No. 22CH1:12-cv-00132 (Grenada Cnty., Miss., Chancery Ct. June 21, 2024) (MEC No. 269). The other awarded Collette McPhail attorneys' fees and expenses for Justin's having previously been found in contempt. Order, McPhail v. McPhail No. 22CHl:12-cv-00132 (Grenada Cnty., Miss., Chancery Ct. June 21, 2024) (MEC No. 270).
Justin says he was unaware of the two June 21,2024 orders when he filed his "Notice of Intent to Appeal." His Notice of Intent to Appeal appealed "the trial court's final judgment issued June 17, 2024, and all orders of the trial court that can be appealed ...."
In the motion now before us, Justin requests three forms of relief. First, he asks to proceed in forma pauperis on appeal.
We find that Justin is not entitled to proceed in forma pauperis on appeal. Generally, "any right to proceed in forma pauperis in other than a criminal cases exists only at the trial level." Blake v. Est. of Clein ex rel. Clein, 37 So.3d 622, 629 (Miss. 2010) (internal quotation marks omitted) (quoting Moreno v. State, 637 So.2d 200, 202 (Miss. 1994)). No exception applies here.
Second, Justin requests "a waiver of the security deposit required to post a supersedeas bond in lieu of the money judgement awarded against him .. .."
We find that Justin's bond-related request should be dismissed without prejudice to his right to seek such relief in the chancery court. See M.R.A.P. 8(b) (stating that an "[a]pplication ... for approval or disapproval of a contested supersedeas bond . . . must ordinarily be made in the first instance to the trial court"); Order, Lea v. Almore, No. 2005-TS-00357 (Miss. May 11, 2005) (dismissing a stay motion without prejudice because the movant failed to seek supersedeas in the trial court); En Banc Order, Kirk v. Newton, No. 2021-TS-00684 (Miss. Sept. 21, 2021) (vacating an order in which the trial court said that it could not adjudicate the amount of a supersedeas bond and remanding the matter for a ruling on that issue). Though Justin says he sought relief under Rule 8 of the Mississippi Rules of Appellate Procedure in the chancery court, there is no proof that he did so or that the chancellor entered a ruling. See M.R.A.P. 8(b)(5) (stating that the trial court's ruling is reviewable by this Court or the Court of Appeals).
Finally, Justin asks that "his 'Notice of Intent to Appeal' ... be enlarged to include entries made without notice to him, without his knowledge or the opportunity to be heard ...The "entries" he references are the two June 21, 2024 orders (i.e., MEC Nos. 269 and 270). Put differently, he asks that his notice of appeal include those two orders.
We find that Justin's notice-of-appeal request should be granted and that he should be allowed time to file an amended notice of appeal that includes the two June 21, 2024 orders (i.e., MEC Nos. 269 and 270) as "order[s] appealed from." See M.R.A.P. 3(c).
IT IS THEREFORE ORDERED that the motion is denied in part and granted in part:
(1) The request to proceed in forma pauperis on appeal is denied;
(2) the bond-related request is dismissed without prejudice to Justin's right to seek such relief in the chancery court; and
(3) the request to enlarge the notice of appeal is granted. Justin has to and including January 6, 2025, within which to file an amended notice of appeal that includes the two June 21, 2024 orders (i.e., MEC Nos. 269 and 270).
SO ORDERED.
AGREE: RANDOLPH, C.J., KITCHENS AND KING, P.JL, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.
DISAGREE: GRIFFIS, J.
GRIFFIS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT.
GRIFFIS, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶1. One of the "maxims of equity" provides:
No one should be condemned without a legal chance to be heard.
This maxim is so clearly founded in natural justice that even savages would understand it. Every decent modem government observes it as an indispensable principle and constitutional right. A judgment rendered in its absence is utterly void, as it ought to be. No person may be denied his day in court.
James W. Shelson, Mississippi Chancery Practice, §2:32, 59-60 (2024).
¶2. This is such a case. It is tragic. Nothing like anything I have ever seen.
¶3. The Court denies Justin McPhail in forma pauperis status. I acknowledge the general rule stated in the Order that "any right to proceed in forma pauperis in other than a criminal cases exists only at the trial level." Blake v. Est. of Clein, 37 So.3d 622, 629 (Miss. 2010) and Moreno v. State, 637 So.2d 200,202 (Miss. 1994). Yet, "justice" demands that this case be considered an exception to the general rule.
¶4. In Blake, the Court considered the effect of the failure to pay costs in a civil case where the plaintiff had obtained a $3.5 million dollar verdict. Blake, 37 So.3d at 629. There was no exceptional reason to differ from the general rule. The plaintiffs were represented by outstanding counsel who has sufficient resources to pay the costs.
¶5. In Moreno, the plaintiff brought a civil action to challenge a policy change interpretation by the parole board. Moreno, 637 So.2d at 200. The Court ruled:
"The only exception to the Nelson rule is an action for post-conviction relief pursuant to Miss. Code Ann. § 99-39-1 et seq. (Supp. 1993). Johnson v. State, 623 So.2d 265 (Miss. 1993). Moreno's appeal involves a purely civil matter; it is not a criminal case and is not an action filed under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1 et seq. (Supp. 1993).Moreno, 637 So.2d at 202.
"This Court has stated that any right to proceed in forma pauperis in other than a criminal case exists only at the trial level. Nelson v. Bank of Mississippi, 498 So.2d 365 (Miss. 1986)." Moreno, 637 So.2d at 202.
¶6. In J.R. T. v. Harrison County Family Court, this Court considered in forma pauperis status for a termination of parental rights case, and it ruled:
The United States Supreme Court has applied the Fourteenth Amendment to protect the rights of citizens, regardless of their financial condition to pursue fundamental legal interests. The foundation case in the relevant line of decisions is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,100 L.Ed. 891 (1956) which held a citizen could not be precluded from an appeal available to others simply because he could not afford to pay for a transcript of the trial.... This line of precedent has since included not only felony cases but also misdemeanor appeals as in Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) which held that a transcript must be provided for an indigent defendant appealing a conviction punished by a $500 fine with no jail time.
The Court has also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pay court fees.... In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), fundamental rights were at issue-a divorce proceeding. The Court made clear that a constitutional requirement to
waive court fees in civil cases is the exception, not the general rule. The Court "has consistently set apart from the mine run of civil cases those involving state controls or intrusions on family relationships."J.R.T. v. Harrison Cnty. Family Court, 749 So.2d 105, 108-09 (Miss. 1999) (internal citations omitted).
¶7. I disagree with the majority that "[n]o exception applies here." This Court has recognized exceptions to this general rule. The facts of this case indicate such exceptional and unique circumstances that this Court should accept Justin's appeal in forma pauperis and without supersedeas.
¶8. Indeed, this case has been before this Court several times. We are familiar with the facts. Justin and Muffet divorced in 2010. They agreed to share joint legal and physical custody of their child, B.M., who was bom on December 29, 2005. B.M. is now almost 20 years old and has been emancipated for almost two years. Yet, his father remained in jail for failure to pay costs associated with a modification action that was never heard. B.M. has gone one-third of his life with his father in jail.
¶9. Muffet brought a motion to modify child custody and for citation for contempt. As a result of Justin's incarceration, Muffet has had no reason to pursue her modification motion. In fact, there has not been one hearing on the modification, and there has been no need for the chancellor to consider either the psychologist's report or the guardian ad litem's report. In fact, none of Muffet's petitions for modification have been successful.
¶ 10. Muffet has filed approximately five petitions for Justin to be held in contempt. Justin has complied and paid a significant amount of child support. Incredibly, Justin has been incarcerated in the Grenada County Jail for six continuous years. He has remained in jail for almost two years after B.M was emancipated.
¶ 11. The cost of this litigation is staggering. Through February 2022, the chancellor has assessed guardian ad litem fees of $7,376.47, psychological exam costs of $2,250, attorneys' fees of $1,760, and past due child support of $18,772.06. That is about a $30,000 cost to the parties. The taxpayers of Grenada County have now incurred the cost of Justin's incarceration at a cost estimated to be approximately $130,000. This litigation, over a modification-of-child-custody claim, has cost the parties and Grenada County more than $160,000. And, to top it off, Justin was incarcerated for one-third of his son's life, unable to undertake his ordered visitation.
¶12. I concur with the Court's decision to allow the notice of appeal to be enlarged to include the two post-judgment orders entered by the chancellor.
¶13. I respectfully disagree, however, with the Court's decision to deny Justin's request to proceed in forma pauperis on appeal and to dismiss his bond request. Justice requires that we allow Justin to proceed with this appeal. Otherwise, as the maxim of equity cited above states, "No one should be condemned without a legal chance to be heard."