Evans v. Miss. Dep't of Human Servs.
| Docket Number: | 2009-CA-00417-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-01-2010 Opinion Author: Maxwell, J. Holding: Affirmed in part, reversed and remanded in part |
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| Additional Case Information: |
Topic: Conversion of child support funds - Tort Claims Act - Immunity - Section 43-19-31 - Section 93-25-101 - Negligence - Sanctions - Section 11-46-9(1)(b) - Section 93-11-157 - Emotional distress - Defamation - Negligent accounting - Section 93-25-63 - Section 43-19-39(2) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 02-17-2009 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Isadore Patrick Disposition: MISSISSIPPI DEPARTMENT OF HUMAN SERVICES’ MOTION FOR SUMMARY JUDGMENT GRANTED Case Number: 08,0058-CI |
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| Party Name: | Attorney Name: | |||
| Appellant: | Clinton Evans |
MELANIE H. MORANO, PATRICIA PETERSON SMITH |
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| Appellee: | Mississippi Department of Human Services d/b/a Warren County Department of Human Services, Child Support Division | JAMES N. BULLOCK |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Conversion of child support funds - Tort Claims Act - Immunity - Section 43-19-31 - Section 93-25-101 - Negligence - Sanctions - Section 11-46-9(1)(b) - Section 93-11-157 - Emotional distress - Defamation - Negligent accounting - Section 93-25-63 - Section 43-19-39(2) |
| Summary of the Facts: | Clinton Evans filed suit against the Mississippi Department of Human Services, d/b/a Warren County Department of Human Services, Child Support Division, claiming that MDHS mishandled child-support funds deducted from his wages, failed to properly account for his payments, converted those funds, caused him emotional distress, and defamed him while carrying out its duties to administer his child-support obligation. The circuit judge granted MDHS’s motion for summary judgment. Evans appeals. |
| Summary of Opinion Analysis: | Issue 1: Immunity To the extent MDHS’s actions are required by statute they are ministerial. Therefore, it is shielded from liability only if ordinary care is exercised in performing or failing to perform its statutory duties. The duty of ordinary care is a fact question to be decided by the judge. Section 43-19-31 authorizes MDHS to create a child-support unit. It is the CSU’s authority to secure and collect child support for individuals receiving certain listed benefits. Section 43-19-31(l) requires MDHS to maintain a case registry of records with respect to each case in which MDHS is providing child-support-enforcement services as well as each support order established or modified in Mississippi. Particularly significant to this case, is the CSU’s responsibility to cooperate with other states in securing compliance with court orders for support of Temporary Assistance for Needy Families children. The CSU also has full responsibility under section 43-19-31 for initiating actions under UIFSA and for responding to actions of other jurisdictions in cases where Mississippi is the responding state. Evans’s wife and children received child-support benefits pursuant to a Louisiana court order. Upon Evans’s move to Vicksburg, the order was registered in Mississippi. However, because his wife and children still resided in Louisiana, Louisiana retained continuing, exclusive jurisdiction. Due to difficulties in finding employment, Evans’s income decreased, and he sought a modification of his child support obligation by the Warren County Chancery Court. At this point, under UIFSA, the Mississippi court had no subject-matter jurisdiction over the child support obligation and was without authority to address the requested modification. Section 93-25-101 creates a procedure for the parties to consent to try the support modification issue in Mississippi. If knowing consent under this provision is given, the parties may proceed in this state. For a Mississippi tribunal to obtain jurisdiction to modify Evans’s support obligation, all parties must consent in the record to a transfer from the court originally issuing the support order — here, the Louisiana district court. If consent requirements are met, Mississippi acquires continuing exclusive jurisdiction, and its orders must then be treated by other states as would those of the original state. MDHS claims that Evans’ wife did not properly consent to a Mississippi tribunal modifying the Louisiana support order. The record indicates Evans’ wife did not file a consent in the record from the Louisiana court when Evans sought modification in Mississippi. Nearly two years later, she contradicted her prior sworn statement and claimed by affidavit that she had previously verbally consented to the reduction by the Mississippi court and had she been asked to “sign something in writing, she would have done so.” Evans argues that her late consent to Mississippi’s jurisdiction breathed life into the previously entered agreed order. Because of the wife’s contradictory affidavits and the intervening Louisiana order that complied with UIFSA and was entered prior to the late filing of consent, Evans’ argument is misplaced. Therefore, the Mississippi agreed order was void ab initio, and the Louisiana order remained in effect. Evans argues that other statutes provide for modification of child support without a request to transfer or the filing of consent. Though Evans is correct, these statutes are inapplicable to the facts of this case. Evans also argues that Louisiana lost its interest in the case after the child-support order was filed in the Chancery Court of Warren County for its enforcement in Mississippi. This is incorrect under UIFSA because Louisiana retains exclusive, continuing jurisdiction. Enforcement in Mississippi does not equate to a transfer of the entire case to Mississippi. Alternatively, Evans argues MDHS had a duty to ensure that a Mississippi tribunal had proper jurisdiction to modify his support order. Section 43-19-31(i) places responsibility on the CSU for initiating actions under UIFSA. Upon Louisiana’s contact with MDHS and inquiry into the Mississippi court’s reduction of Evans’s support obligation, MDHS attempted at least three times to set aside the agreed order. But the chancellor refused to do so absent service on Evans. Though there is little in the record from either party as to why service was not obtained on Evans, this issue does not need to be decided because MDHS did not enforce the Louisiana order after its modification by the Warren County Chancery Court. Issue 2: Sanctions Evans argues MDHS’s negligence resulted in the unwarranted suspension of his driver’s license, an encumbrance of his bank account, damage to his credit rating, and led to the interception of his income tax refund. Evans does not challenge MDHS’s authority to levy these specific sanctions but claims they were inappropriate under the circumstances because he was not in arrears on his support obligation. To penetrate MDHS’s immunity under section 11-46-9(1)(b), Evans must show MDHS failed to exercise ordinary care in performance of, or in the failure to execute or perform, its statutory duties. Evans failed to provide sufficient evidence that he was not behind in his child-support obligation at the times MDHS imposed the various sanctions against him. Indeed, the many records on which he relies show he was consistently in arrears under the (Mississippi) $400 agreed order. Section 93-11-157 authorizes MDHS to suspend an obligor’s license for non-compliance with child-support orders. Evans wholly fails to mention or address the requirements under the statute. Instead, he relies on unsupported allegations that his license was wrongfully suspended. Because Evans neglected to establish a fact issue as to MDHS’s failure to exercise ordinary care in suspending his license, summary judgment was appropriate on this issue. Evans also argues MDHS injured his credit history and improperly froze assets from his bank account. Here again, Evans fails to support his allegations, as his own records show arrears supporting the lawful reporting, encumbrance, and seizure. Therefore, MDHS is not liable for any resulting credit injury. Evans argues MDHS negligently accounted and disbursed his support payments causing LDSS to consider him behind in his obligation. LDSS did refund a portion of the funds it initially withheld from Evans’s tax return. But Evans failed to show LDSS intercepted his income tax refund because of any action or inaction on the part of MDHS. It also appears Evans also failed to comply with the mandate of section 11-46-11(1) to exhaust all administrative remedies before filing suit. Issue 3: Emotional distress Evans sought additional damages for emotional distress he argues MDHS caused both intentionally and through its negligence. Evans claims he experienced sleeplessness and anxiety. He also contends he experienced marital trouble and embarrassment at work. In cases involving intentional infliction of emotional distress, the plaintiff must prove the defendant’s conduct was wanton and willful and evoked outrage or revulsion. Evans has failed to show MDHS’s actions were so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Even absent the immunity provided by the Tort Claims Act, and MDHS’s actions notwithstanding, Evans’s allegations fall short of the substantial proof of emotional harm Mississippi law requires to establish claims of emotional distress. Issue 4: Defamation Evans argues that MDHS defamed his reputation through the negligent reporting of arrears. To establish a claim of defamation, Evans must show a false statement that has the capacity to injure the plaintiff’s reputation; an unprivileged publication, i.e., communication to a third party; negligence or greater fault on part of publisher; and either actionability of statement irrespective of special harm or existence of special harm caused by publication. Evans’s own accounting indicates he was consistently in arrears during MDHS’s handling of the child-support obligation. Thus, he is unable to show the necessary false statement required to substantiate his defamation claim. Issue 5: Conversion Evans argues MDHS negligently or intentionally converted child-support funds collected from him, withheld those funds, and failed to distribute them to LDSS or his wife and his children as required by statute. Conversion is an intentional tort that does not require proof of fraud, malice, libel, slander, or defamation. Though at times Evans asserts a “fraudulent conversion” by MDHS, he fails to show any fraudulent intent on MDHS’s part. To succeed on a conversion claim, Evans must show he owned the funds at issue. To establish a conversion, there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized and injurious use, or of a wrongful detention after demand. Once a child support payment becomes due, that payment vests in the child. For purposes of his conversion claim, Evans had no ownership interest in the vested support obligations. Issue 6: Negligent accounting Though Evans fails to establish a conversion, he presents a fact issue on his claim of negligent accounting and disbursement. MDHS had a statutory duty to disburse Evans’s child-support payments under section 93-25-63. Section 43-19-39(2) allows MDHS to retain collected funds as reimbursement for a mistaken or erroneous advance of benefits on behalf of a child. However, MDHS is not allowed to retain any amounts beyond that reimbursement. The amounts collected and disbursed by MDHS are in dispute. MDHS’s records indicate payments by Evans in the amount of $4,735.67 as of June 2007. By January 2007, Evans’s payroll records indicate withholdings totaling $458.28 less than what MDHS claims to have collected by June of that year. Evans provided other records indicating payments exceeding the amounts MDHS credited him. When considered with his wife’s affidavit, wherein she attests she received no support disbursements, Evans has provided sufficient evidence to raise a genuine issue of material fact — whether MDHS breached its duty of ordinary care in accounting and disbursing Evans’s support obligations. |
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