Reprise: Winning Your Child-Support Modification Case

September 23, 2016 § 1 Comment

Reprise replays posts from the past that you may find useful today:


October 23, 2012 § 2 Comments

There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.

In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

So here are a few tactics that may help:

  • Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
  • See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
  • If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
  • Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
  • Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
  • Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention.

Plan your modification case for success. Remember that you can use summaries and compilations to present your evidence. And the clearer and better your 8.05’s are, the greater you chances of success.

Avoiding a Desertion Glitch

September 22, 2016 § Leave a comment

MCA 93-5-1 provides that the court may grant a divorce on the ground of “Willful, continued and obstinate desertion for the space of one (1) year.”

It’s often said that desertion is the easiest ground to prove as an uncontested divorce. It’s fairly straightforward:

  1. Separation without fault on the part of the complaining party;
  2. Continued, obstinate, intentional, and unjustifiable separation for more than a year.

But there’s another element that you need to include in your proof. In the case of Lynch v. Lynch, 217 Miss. 69, 63 So.2d 657, 653 (1953), the court said:

In matter of law, a deserted party must stand ready to receive the other back, if the offer to return is made in good faith, not otherwise, at any time before the statutory period has fully run. But when the desertion has ripened into a ground for divorce, the day of repentance has ended, and the one in whom is the right may refuse.”

In 21st-century language, this means that: (a) during the one-year desertion period, the deserted party must have been willing to allow the deserter to return home if a good-faith offer to return would have been made; and (b) after the one-year period has expired, that duty expires also.

So you must ask your client in his or her testimony to this effect: “If the other party had offered to give up his paramour, and to repent of his ways and to return home in good faith, would you have taken him back?” If the answer is affirmative, you will be successful if the other elements are proven and there is corroborating testimony.

I’ve seen some uncontested divorces come unravelled because the complaining party didn’t seem to have ever heard of this concept.

Before setting off for court, sit your client down and explain this requirement. What most clients think when confronted with the question is, “Horrors, I never want to see that monster again since he left me for that other woman!” Once they understand that the willingness to resume cohabitation, if there is a good-faith offer to reconcile, applies only to that one-year period now elapsed, they relax. There is no requirement to take the deserter back after the one-year period has expired — good faith or no.

The Conditional Ring

September 20, 2016 § Leave a comment

We talked here before about the status of the engagement ring in equitable distribution. To make a long issue short: the engagement ring is a gift that is the separate property of the wife and which is not subject to equitable division, although it is included in the wife’s estate as her separate property that could impact alimony and even the percentage of equitable distribution. You can read about it at this link.

Equitable distribution, of course, requires first a marriage and then a divorce. What, then, is the status of the engagement ring where there is no marriage and consequently no divorce.

That was the question before the court in the recent COA case of Cooley v. Tucker, decided September 6, 2016.

In that case, Tucker had given Cooley an expensive engagement ring. After a while, he broke off the relationship and requested that she return the ring to him. The proof included that: Cooley wore the ring continuously after she received it; Tucker insured the ring and listed himself as the sole owner of the policy with no mention of Cooley; the parties’ relationship became strained and troubled; and no wedding date was ever set, and no wedding plans were ever made.

When Cooley refused to return the ring, Tucker filed a replevin action in chancery court. The special chancellor ruled that the gift was a conditional one, rather than a completed, final, inter vivos gift. He found in Tucker’s favor, and Cooley appealed. Judge Ishee wrote for the court:

¶8. Cooley asserts that the chancery court erred in its determination that the ring was a conditional gift rather than an inter vivos gift. The chancery court properly cited Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982), as guidance on the elements of a valid inter vivos gift, which are as follows: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.” Id. (citation omitted).

¶9. In Johnson, the properties at issue consisted of certificates of deposit that were given on the condition that the recipient obtain a divorce. Id. at 1031. The supreme court determined that because the divorce did not occur, the gift was not a valid inter vivos gift “because the gift was not complete with nothing left to be done.” Id.

¶10. Likewise, the cases relied upon by Cooley, Lomax v. Lomax, 172 So. 3d 1258 (Miss. Ct. App. 2015), and Neville v. Neville, 734 So. 2d 352 (Miss. Ct. App. 1999), are also divorce cases that question which party should be awarded the engagement ring post-divorce. In both cases, we determined that the wife should keep the engagement ring because “it was not a marital asset subject to equitable division.” Lomax, 172 So. 3d at 1262 (¶13) (quoting Neville, 734 So. 2d at 357 (¶19)).

¶11. This is not inconsistent with the required elements in Johnson. The engagement ring is to be considered an inter vivos gift conditioned upon the parties getting married – a condition that, obviously, occurred in the cases cited by Cooley. Id. at (¶11). Hence, in those cases, the Johnson requirements were met, including the element mandating that the gift be completed with nothing more to be done. Johnson, 419 So. 2d at 1030.

¶12. Here, the chancellor ultimately determined that “[t]he engagement ring was a conditional gift presented in contemplation of a marriage that did not occur.” It is from this determination that the chancellor awarded Tucker the ring. This conclusion is supported by Mississippi caselaw and by fact. We cannot find that the chancellor “was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Buford, 832 So. 2d at 600 (¶14). This issue is without merit.

¶13. Cooley requests, in an alternative argument, that this Court create new precedents under which trial courts would determine ownership of an engagement ring following a broken engagement. We decline to do so. Existing Mississippi gift law adequately addresses cases such as this, and we will not deviate from the path set before us at this time.

Judges Barnes and Carlton both wrote dissenting opinions, joined in part by Griffis and James.

Unless the MSSC grants cert and chooses a different route, then, the law of engagement rings sans marriage will follow existing Mississippi gift law.

The Good Neighbor Policy

September 19, 2016 § Leave a comment

No, this post is not about the Franklin Roosevelt administration’s policy toward Latin America. It’s about real-life neighbors and how we all would like to see them treat one another.

The Kendall, King, Mullen, and Greenwood families (we’ll call them “the Kendalls”) owned land traversed by Coleman Road, which was at one time a public road, but which had been abandoned by the county board of supervisors. After it was abandoned, the Kendalls allowed Kirsh and Gayle Mullen May to use the road. But that stopped in 2013, when they prevented the Mays from doing so.

The Mays filed suit for a prescriptive easement. After a trial, the chancellor concluded that they had failed to meet the burden of proving what amounts to adverse possession of the right-of-way, and so he denied their claim. In his ruling, the chancellor ordered the Kendalls to provide the Mays with a key to the gate blocking the road, and to allow them use of the road, notwithstanding his negative ruling on the prescriptive easement relief. He said:

While this Court has determined as set forth above that [the Mays] have no right of ownership in Coleman Road, Chancery Court is a court of equity [and] can require the parties in a legal proceeding such as this to do that which is reasonable and fair. Defendants in their final brief in this matter cited Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960) wherein it was stated: “The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights.” Defendants allowing [the Mays] the right to use Coleman Road in the past was the right and neighborly thing to do and this use did nothing to harm Defendants’ ownership in Coleman Road.

The Kendalls, having won the battle but lost the war, appealed. Their sole issue on appeal was, in essence: Huh? Can he do that?

In Kendall, et al. v. May, decided August 16, 2016, the COA predictably reversed and rendered. Judge Wilson wrote for a somewhat unanimous court, Judge James concurring “in part without separate written opinion”:

¶9. Thus, the only issue in this appeal is whether, despite the Mays’ inability to establish a prescriptive easement, the chancellor had authority to order the defendants to give the Mays a key to the gate and to allow them to use the road. In granting that relief to the Mays, the chancellor cited Patterson v. Harris, 239 Miss. 774, 125 So. 2d 545 (1960). In Patterson, Harris claimed a prescriptive easement based on a lengthy period of use of a private road over the Pattersons’ land. See id. at 784-85, 125 So. 2d at 550. The Court held that he was not entitled to an easement because his use had been permissive, not hostile or adverse. See id. at 787-88, 125 So. 2d at 551-52. The Court reasoned:

The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon “to go to law” to protect his rights.

Id. at 785-86, 125 So. 2d at 550 (quoting Weaver v. Pitts, 133 S.E. 2, 3 (N.C. 1926)). Therefore, “[i]t is a recognized rule of law that where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.” Id. at 786, 125 So. 2d at 550.

¶10. Thus, the law does not authorize courts to compel “acts of neighborly courtesy” in particular cases, which is essentially what the chancellor did here. Rather, it encourages voluntary acts of courtesy among neighbors by making clear that such courtesies will not result in a forfeiture of property rights. The rationale is that if permissive use were allowed to “ripen into a prescriptive right,” neighbors would be far less willing to permit one another to use their lands to begin with. In the present case, this underlying policy requires us to uphold the defendants’ right to refuse to allow the Mays to continue to cross their lands. The chancellor’s order of a right of access and a key to the gate would discourage neighborly courtesy in the same way as a prescriptive easement.

¶11. In short, the law grants the defendants a right to exclude others, including the Mays, from their property. Accordingly, the chancellor had no equitable authority to order them to give the Mays a key and access to their property.We therefore reverse and render judgment in favor of the defendants.

To their credit, the Mays filed a motion “to confess the appeal,” in which they stated that they had decided not to cross-appeal the denial of the prescriptive easement, and they acknowledged that they could find no case law or statutory authority to support the chancellor’s order that they be given a key and access over the road. (¶6)  The MSSC left it up to the COA to decide what to do with the motion, which required the parties to brief the uncontested issue, and the COA to rule on it. Kudos for professionalism to counsel for the Mays. Head-scratch to the MSSC.



Dispatches from the Farthest Outposts of Civilization

September 16, 2016 § Leave a comment


Settlement Announcements: What Could go Wrong?

September 14, 2016 § 4 Comments

The COA’s memorable decision in Pearson v. Browning, 106 So.3d 845 (Miss. App. 2012), is notable for the fact that it reversed the trial court because the counterclaiming party had not been served with a R81 summons for trial. I think most chancellors up to then — and even now — believe that once you invoke the jurisdiction of the court by filing a pleading (particularly a pleading on offense), you have submitted yourself to the jurisdiction of the court, and no further process is necessary, only notice per R5.

The reversal did not resolve the dispute between the parties, though. They went right back at it, and found themselves back in trial on contempt issues before the same chancellor. On November 5, 2013, the chancellor again ruled against Dennis Pearson, who appealed yet again. This time he contended that the original judgment rendered October 13, 2005, although styled as an “agreed” judgment, included terms not embraced in the settlement announcement and was not signed either by him or his attorney, and so was ineffective.

The COA affirmed in Pearson  v. Browning, handed down August 16, 2016. Judge Irving wrote for the court:

¶8. Dennis argues that the October 13, 2005 “agreed” modification order was invalid
because he did not agree to its terms and that neither he nor his attorney signed the order, as required by Uniform Rule of Chancery Court 5.03. Rule 5.03 states: “Every consent Judgment must be approved and signed by counsel for all parties to the suit who may be represented by counsel and interested in or affected thereby before being presented to the Chancellor for his signature. The Court may also require the parties to sign.”

¶9. Dennis argues that “[i]t is clear from looking at the transcript of August 16, 2005[,]
. . . that the agreement read into the record differed from the agreement as later written in the October 13, 2005 ‘Agreed Order.’” However, Dennis makes no specific argument regarding what is different. The chancellor’s findings of fact and conclusions of law on this issue state that the October 13, 2005 agreed order “is a mirror image of the parties’ agreement as read into the record.” Dennis only complains about the portion of the order granting Patricia all equity in the marital home. However, Dennis clearly agreed to this, as well as the other provisions of the order, during the August 16, 2005 hearing.

¶10. During the August 16, 2005 hearing, Dennis’s attorney stated into the record, “We
have reached an agreement regarding all issues contained in the pleadings.” Counsel then proceeded to detail modifications to the visitation schedule; the requirement that within sixty days, Patricia would refinance the marital home, Dennis would quitclaim his interest in the marital home to her, and she would be responsible for all mortgage payments on the home; the parties’ agreement to waive any contempt issues regarding past-due bills or visitation; and each parent’s right to claim one child as a dependent for tax purposes. The parties were then placed under oath and questioned by the chancellor about the modifications. Dennis’s testimony was as follows:

Q. [Dennis,] did you understand what the attorneys read into the record as
your agreement?
A. Yes, I do.
Q. Was that your agreement?
A. That’s correct.
Q. Do you understand that this agreement will be put into writing and will
become the court’s order?
A. Yes, I do.
Q. And you understand that failure to follow the agreement could result in
a contempt charge against you?
A. I do.

¶11. In ruling on Dennis’s motion to set aside the agreed order as invalid, the chancellor found Dennis’s signature on the agreed order unnecessary as “surplusage,” since the agreement had been read into the record and agreed to under oath by both parties. Also, in finding no merit to Dennis’s argument that the order was inconsistent with the settlement agreement read into the record, the chancellor stated in his findings of fact and conclusions of law:

The next day after the hearing (October 14, 2005), Dennis signed a Quitclaim Deed at a bank. This act by Dennis is consistent with the agreement of the parties in the transcript. This Quitclaim Deed transfers Dennis and Patricia’s interest in the marital home and property to Patricia and her present husband, Steven. Dennis now claims that the property was conveyed to Patricia in exchange for Patricia waiving her interest in the Thrift Savings Plan and retirement. This is inconsistent with the August 16, 2005 transcript, the October 13, 2005 Agreed Judgment of Modification, and Dennis’s act of conveyance in signing the Quitclaim Deed one (1) day after the Judgment.

¶12. This Court addressed a similar issue in McDonald v. McDonald, 850 So. 2d 1182
(Miss. Ct. App. 2002), aff’d on cert., 876 So. 2d 296 (Miss. 2004). In McDonald, the wife
filed for modification of the visitation schedule that was established at the time of her and her husband’s divorce. Id. at 1185 (¶3). A hearing was held, and both parties agreed to the new schedule. Id. at (¶4). However, the husband later refused to sign an agreed order. Id. at (¶5). The wife filed a “Motion for Entry of Agreed Order.” Id. The chancellor signed and entered the order without the husband’s or his counsel’s signature. Id. at 1186 (¶5). The husband appealed, arguing the “agreed” order was invalid, as he did not sign it and did not agree with its terms. Id. at 1188 (¶18). We agreed with the husband “that there must be consent for a consent decree.” Id. at (¶21). However, we also noted that “[a] consent judgment is in the nature of a contract,” and is binding as such. Id. at 1189 (¶25). Despite the husband later changing his mind, we found that at the relevant time for consent—when the settlement terms were announced in open court—the husband did agree to the settlement, and his agreement at that time was sufficient to be contractually binding. Id.

¶13. Specifically, we held that the circumstances of announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time. Absent any showing that the final written order did not reflect the agreement announced in court, or any identification of a matter cognizable under [Mississippi] Rule [of Civil Procedure] 60 that could lead to setting aside a consent decree after [its] being entered—and neither showing exists here—we find that the parties were bound by their agreement even before it was reduced to a formal written order. McDonald, 850 So. 2d at 1189 (¶¶25-26).

¶14. While neither Dennis nor his attorney signed the agreed order, the hearing transcript reflects that Dennis understood the agreement that was read into the record and that he understood that the agreement would be put into writing and become the court’s order. His attorney made no objection at the hearing to the entry of the order. The supreme court has found that proceedings recorded by a court reporter are sufficient to prove agreement by the parties. See Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (“If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” (Emphasis added)). Dennis has not provided any proof that the agreed order did not reflect the terms of the settlement agreement read into the record. Therefore, the settlement agreement announced in court and later reduced to writing was sufficient evidence of the parties’ consent to be bound. This issue is without merit.

So the case would appear to turn on Dennis’s failure to spell out in detail exactly how the judgment varied from the announcement. I think it’s laudable that the chancellor went to the trouble of addressing Dennis’s attack on the then-eight-year-old-judgment, given the prior appellate history of this case. I am sure the chancellor was trying to ensure no more appellate ricochets.

Still, I wonder why no one pointed out that Dennis should have raised this issue of the validity of the 2005 judgment by filing a notice of appeal within 30 days of that judgment. ‘way back in 2005 — now more than ten years ago and counting. Is this really a jurisdictional argument he is making, or is this a ministerial omission that could have been cured with a R59 motion?

This case highlights why I don’t like settlement announcements. It seems that one party is always looking for a way to wriggle out of them, and they often find lawyers willing to take their money to aid them in the attempt. Words spoken are never as precise as words reduced to writing. Better to reduce the agreement to writing so all can see and edit, and then have everyone sign. That’s my position, and I’m sticking to it.

The Name Game

September 13, 2016 § 2 Comments

A contentious issue in many paternity cases is what the surname of the child will be. It is contentious between the parties, certainly, and often with the parents, grandparents, aunts, uncles, and siblings who sit in the cheering section. The law, though, is rather clear on what is to be done about the child’s name.

Jeremy Flynn and Madison Bland had a relationship that resulted in the birth of a daughter, Allyson. When she learned she was pregnant, Madison told Jeremy, who asked for a DNA test. Madison refused because she thought it could harm the baby.

Their contact continued sporadically through the pregnancy, including one occasion when Jeremy accompanied Madison to the Medicaid office to enroll her for prenatal care.

On November 6, 2006, Allyson was born. Jeremy did not participate, and he was not listed on the birth certificate. Madison and the baby lived with Madison’s parents. When Madison attempted to show the new baby to Jeremy, he ran from them, according to the testimony.

Jeremy had little involvement in Allyson’s life. He claimed it was because he did not even know he was the father until 2010. The evidence was conflicting. He filed a petition for filiation, and an agreed DNA test established that he was, in fact, the father. Madison’s parents, the Blands, filed an intervening petition for custody. Following a trial, the chancellor found that Jeremy had deserted Allyson, and awarded the Blands custody and refused to change Allyson’s surname to Flynn. Jeremy appealed.

In Flynn v. Bland, decided August 30, 2016, the COA affirmed the award of custody, but reversed and rendered the chancellor’s denial of the name change. Judge Ishee wrote for the court:

¶15. Finally, Jeremy takes issue with the chancery court’s decision not to change Allyson’s surname to Flynn. Jeremy cites Rice v. Merkich, 34 So. 3d 555 (Miss. 2010), in support of his argument. We find Rice on point. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶2). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The Mississippi Supreme Court quoted Mississippi Code Annotated section 41-57-23(2) (Rev. 2009), which provides:

If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [(Rev. 2004)]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. Rice, 34 So.3d at 558 (¶10).

¶16. Ultimately, the supreme court in Rice determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See id. at 559 (¶16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶11-12).

¶17. Furthermore, “in the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1). As explained in Rice, “[a]lthough the statute does not delineate those circumstances where the ‘judgment specifies otherwise,’ it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue.” Rice, 34 So. 3d at 557 (¶8).

¶18. Here, the record is clear the Blands did not contest the change-of-name request and have failed to show by a preponderance of the evidence that it is not in the best interest of Allyson to bear her father’s surname. We reverse the chancery court’s decision on this issue, and render the change of Allyson’s surname from Bland to Flynn in accordance with section 93-9-9(1).

That’s a pretty nifty recap of the law on name change in paternity cases. It might be just what you need to guide your client — and the cheering section — in deciding whether to litigate this issue.

Abandonment of the Marriage

September 12, 2016 § 4 Comments

Sarah Young Estes and Joe Howard Estes married in 2006, after a six-month courtship. Each had children by previous relationships.

Sarah had a separate home she owned before the marriage, and she allowed her children and minor grandchildren to live in it. She worked a revolving schedule as a caregiver for sick and elderly. She also lived in Joe’s home. So she divided her time among the three.

Shortly after the marriage, Joe suffered a series of medical calamities that resulted in amputation of his leg, as well as surgery to unblock neck arteries. Due to her work and grandchild-care duties, it was left to Joe’s family to care for him. It was disputed in the proof as to just how much time and attention she devoted to Joe after his medical condition worsened.

In January, 2007, Sarah filed an unsuccessful petition to have Joe subjected to involuntary mental commitment.

A month later, Joe filed for a restraining order against Sarah. In March, 2007, she filed for divorce. The parties agreed to mutual injunctions, and a final trial date was set for the divorce trial. In May, 2007, Joe shot and killed himself.

Joe died testate, but the will made no provision for Sarah. She filed for a widow’s allowance and contested the will. The chancellor granted her a $12,000 widow’s allowance and a child’s share worth nearly $69,000. The executor appealed, and the COA reversed and remanded, concluding that Sarah was not entitled to a widow’s allowance because she was not living with Joe at the time of his death. The case was remanded for a determination whether Sarah had deserted and abandoned the marriage, which would disqualify her for a child’s share if so. On remand the chancellor found that she had not deserted and abandoned the marriage, and that she was, indeed, entitled to a child’s share. The executor again appealed.

In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down April 19, 2016, the COA reversed and rendered. Judge Ishee wrote for the majority:

¶18. When determining whether a spouse clearly deserted and abandoned a marriage, Mississippi caselaw provides a spectrum of factual scenarios for comparison. Most notably, Tillman v. Williams, 403 So. 2d 880 (Miss. 1981), serves as a benchmark case providing guidelines for determining abandonment. In Tillman, Narvel Tillman challenged the will of his wife, Ada Broadnex Tillman, after her death, and petitioned the trial court to recognize him as an heir to the estate. Id. at 880. The Tillmans were married for approximately twenty-nine years at the time of Ada’s death, but had been separated for approximately fifteen or twenty years. Id. Neither party had made any attempt to divorce the other or remarry. Id. Specifically, “[t]here was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce.” Id. Ultimately, the Mississippi Supreme Court stated: “A thorough review of the record reveals that not only was an abandonment uncertain, . . . [t]here was, at most, just a separation proven. As stated, there [were] no marriage or divorce proceedings by either party . . . .” Id. at 882.

¶19. In sum, to prove desertion or abandonment in cases such as this, a clear indication that one party is no longer committed to a marriage is necessary. While we recognize that separation alone is not proof enough that a marriage has been abandoned, Mississippi courts have recognized qualifying indicators to include filing for divorce, filing for remarriage, and evidence of bigamy. See id.; Rowell v. Rowell, 170 So. 2d 267, 271-72 (Miss. 1964).

¶20. Here, it is undisputed that Young filed the first petition for divorce between the parties in March 2007. The chancery court cited the possibility that Estes’s petition for a restraining order against Young may have incited Young to file for divorce. The chancery court further stated that it could not determine that Young “willfully left and had the intention of  permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.”

¶21. We find the chancery court’s conclusions to be in conflict with the evidence. A summary of the undisputed chronological series of pertinent events during the parties’ nine month marriage consists of the following: (1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon his release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings. Regardless of any other factors present in this case, the most glaring evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.

¶22. As such, we find that the chancery court abused its discretion in determining that Young did not desert and abandon her marriage to Estes. In doing so, we reverse and render the chancery court’s award to Young of a child’s share of Estes’s estate.

You can take this case as a reminder that, if the proof establishes that the spouse has deserted and abandoned the marriage, she or he loses the right to revoke the will and assert a claim to a child’s share. That is a fact determination.

What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative. From the recitation of facts in the decision, I am not convinced that the testimony was as clear-cut as spelled out in ¶21, above.


How Low Can We Go?

September 9, 2016 § 2 Comments

This from the online ABA Journal

Two more lawyers are permanently disbarred for DUI setup of opposing counsel

POSTED AUG 26, 2016 10:39 AM CDT


The Florida Supreme Court has permanently disbarred two Tampa lawyers for setting up their opposing counsel for a DUI arrest in the middle of a trial.

The court disbarred Robert Adams and Adam Filthaut on Thursday, saying their actions were “among the most shocking, unethical and unprofessional” that the court had ever witnessed. The Daily Business Review (sub. req.), the Tampa Bay Times and the Legal Profession Blog have stories. The decision is here (PDF).

Adams and Filthaut had argued any disbarment should not be permanent. A third lawyer involved in the setup, Stephen Diaco, was permanently disbarred in January after dropping his appeal.

The lawyers were accused of sending a paralegal to a Tampa steakhouse where the opposing lawyer was having drinks. The flirtatious paralegal seated herself next to the opposing lawyer and later persuaded him to drive her car, resulting in his arrest by a waiting police officer. The targeted lawyer had originally planned to walk home to his nearby apartment.

The court said the actions of the disbarred lawyers “constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client.”

Filthaut’s lawyer, Mark O’Brien, told the Daily Business Review that his client “is obviously very disappointed, but he has moved on and is actually very happy in his current endeavors.” Filthaut now runs an auto-glass business.

The headline reads “Two more lawyers …” as if this is the latest in a developing Zika-like epidemic. I know it refers to the two latest in addition to the one who dropped his appeal. Still, as unsettling as this story is, it’s scary to think it could be replicated anywhere else.

As I said earlier in the week, stories like this make it hard to defend the profession.

A Saga of Bad Behavior

September 8, 2016 § 1 Comment

Every attorney I know bridles when the conversation turns to questioning the general honesty of lawyers. We tend to get indignant and insist that ours is an honorable profession.

It is. Certainly. Yet some of our colleagues do things that tar all of us.

Consider what happened in the case of Newton v. Brown, et al., decided by the COA May 24, 2016. The case at the trial level involved dissolution of a two medical partnerships; one to purchase a building and parking lot, and the other to operate a medical clinic out of the purchased building. The partners were Drs. Brown and Matthews. When Matthews was convicted of failing to file tax returns, they began the process of dissolution. Each engaged the services of a lawyer to represent him. The dissolution involved exchanges of payments, deeds, and instruments. Brown was to buy out Matthews’ interest in the property and clinic.

Brown’s attorney handled the property transaction. He was given a check payable to the Mississippi State Tax Commission to satisfy its lien against the partnership property. At ¶8, Judge Griffis describes how Brown’s attorney handled his share of the responsibilities:

  1. He did not forward the check to the tax commission;
  2. He incorrectly drafted the quitclaim deed from Matthews to Brown by omitting the parking lot;
  3. He failed to record the quitclaim deed, and to compound the calamity …
  4. He lost the deed;
  5. He did not find or disclose a judgment lien on the property at the time of conveyance, which caused mischief later.

As head-shaking as is all of that, it just does not hold a candle to the conduct of Matthews’ attorney. Since Matthews at that time was already incarcerated, his attorney proceeded to collect the money due the doctor. The attorney visited Blakeslee, a CPA for the partnership. Blakeslee had two checks payable to the attorney as representative for the jailed doctor: one, a Hancock Bank check for more than $55,000 for the doctor’s share of the partnership’s liquid assets; and another, drawn on on an A.G. Edwards account, in the amount of more than $49,000 for the doctor’s share of the cash surrender of a whole-life insurance policy.

When Blakeslee left the room for a moment, the attorney took the checks, a folder, and some papers from Blakeslee’s desk and put them in his car. Blakeslee demanded return of the checks because Brown wanted to retain the money to offset the lien that he had belatedly discovered after he bought the property from Matthews. Newton refused, and negotiated the Hancock Bank check. He attempted unsuccessfully to negotiate the A.G. Edwards check.

Brown got an injunction and pursued a conversion action against the lawyer. You can read about how it turned out at the link above.

My interest in this case is the behavior of the attorneys:

On one hand, we see an attorney who committed compound blunders in handling the land transaction. Blunders that cost his client some serious money, and are continuing to do so.

On the other hand, we have what Judge Griffis characterized as “egregious behavior” by the attorney who took the checks without authorization and refused to return them. Egregious indeed.

These are the kinds of behaviors that make our words ring hollow when we try to defend the profession.

Week before last, I sat down with some entering law school students and discussed with them the gravity of the honor and dignity of the profession, and how the public places immense trust in our hands. We pondered some case studies involving ethical and professionalism considerations. It was gratifying to see their almost instinctual grasp of what is right and wrong, of what is to be expected of them when they are admitted to practice. I hope they avoid blunders and “egregious behavior” when their time comes.