June 15, 2020 § 30 Comments

As I mentioned here before, today’s is the final post on this blog, except as I mention below.

All of the content posted up to now will remain at this address for your ready access unless WordPress changes the rules to something intolerable, in which case I will try to let you know before disappearance takes place.

Please remember that the law changes all the time, so when you read that post from 2012 and think “Aha! Just the case I’ve been looking for!” it may be that it is no longer good law. This site has never been intended as a substitute for solid research.

Several people have asked me to replace my 4x/week posts with occasional pieces. Well, that would be more of a nuisance to readers trying to keep up than something helpful. I may share some of my photos from time to time. I’m no Ansel Adams or William Eggleston, or even Vivian Maier, but I do enjoy my cameras and I enjoy sharing my pictures.

There is a move afoot to create a chancery practice site. I don’t know whether it will be a static site, or a blog, or what form it ill take, but if you will support it, you will benefit.

More than 65% of my life has been dedicated to the law, the past 14 as chancellor. Despite all its shortcomings, I think the law is the noblest profession. My passion as judge has been to heighten professionalism and the level of practice. I hope this blog served that purpose.

So, thank you for letting me try to enlighten and entertain you these past ten years. It’s been an enjoyable experience. I have enjoyed getting to meet in person and by comment many lawyers I would never have crossed paths with otherwise.


Dispatches from the Farthest Outposts of Civilization

June 12, 2020 § 3 Comments

The Value of Valuation

June 11, 2020 § Leave a comment

In the divorce case between Missy and Randy Norwood, the only evidence in the record of property values was in the form of the parties’ 8.05 financial statements. This despite the fact that the property in dispute for equitable division included 129 acres of land with poultry houses, a residence with 3.37 acres and the poultry business. Missy’s financial statement assigned a gross value of $1,148,000, and Randy’s total was $840,000. There was debt. The chancellor sorted through it as best he could, assigned values, and divided the estate. Unhappy with the division, Missy appealed.

The COA affirmed in Norwood v. Norwood, decided May 12, 2020. Judge McCarty wrote the 5-4 majority opinion:

¶11. “It is within the chancery court’s authority to make an equitable division of all jointly acquired real and personal property.” Martin v. Martin, 282 So. 3d 703, 706 (¶7) (Miss. Ct. App. 2019) (quoting Bullock v. Bullock, 699 So. 2d 1205, 1210-11 (¶24) (Miss. 1997)). “This Court reviews a chancery court’s division of marital assets for an abuse of discretion.” Id. “We will not reverse a chancery court’s distribution of assets absent a finding that the decision was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id.

¶12. “Our Supreme Court has held that the foundational step to make an equitable distribution of marital assets is to determine the value of those assets.” Id. at (¶8) (internal quotation mark omitted). From there the chancery court must equitably divide the marital property according to the factors first articulated in Ferguson. Id. at 706-07 (¶8). [Fn omitted]

¶13. Now on appeal, Missy claims error in the chancery court’s valuation of the marital assets. However, the chancery court relied upon the evidence provided by the parties in valuation and distribution. The general rule is that “[i]t is incumbent upon the parties, not the chancery court, to prepare the evidence needed to clearly make a valuation judgment.” Id. at 707 (¶10). In Martin, the wife had complained that the husband received more than her after the chancery court’s distribution of assets. Id. at 706 (¶6). Yet, “[d]espite numerous requests from the chancery court, neither party provided the court with a single valuation of the assets at issue,” “[t]here was no testimony of the market value of the real property,” and “[a]ppraisals were never conducted.” Id. at 707 (¶9).

¶14. In light of the general rule, we affirmed the court’s decision regarding property distribution. Id. at (¶13). For “[w]here a party fails to provide accurate information, or cooperate in the valuation of assets, the chancery court is entitled to proceed on the best information available.” Id. at (¶10); see also Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003) (“This Court has held that when a [chancery court] makes a valuation judgment based on proof that is less than ideal, it will be upheld as long as there is some evidence to support [its] conclusion.”).

¶15. In this case, the chancery court considered all of the evidence before it—both parties’ Rule 8.05 financial statements and their in-trial testimony. It is clear that more and better proof would have been helpful to the chancery court. But the fact that there was little proof does not automatically warrant a reversal of the chancery court’s determination of this issue. As we declared nearly two decades ago, “[t]o the extent that further evidence would have aided the chancellor in these decisions, the fault lies with the parties and not the chancellor.” Ward v. Ward, 825 So. 2d 713, 719 (¶21) (Miss. Ct. App. 2002).

¶16. The dissent cites Mace v. Mace, 818 So. 2d 1130, 1133-34 (¶¶13-14) (Miss. 2002), to suggest we should remand due to the lack of an expert’s valuation of the marital property. In that case, the Mississippi Supreme Court reviewed the valuation of a medical practice, which the trial court had assessed at $374,000, including the value of the building and equipment. Id. at 1133 (¶13). Because of the complexity of the issues, and because “it [was] abundantly clear from the testimony that the valuation of the practice was unreliable,” the Supreme Court reversed and remanded for a more comprehensive valuation. Id. at 1134 (¶¶15-16).

¶17. However, Mace did not create a requirement that only an expert can conduct a property valuation before an equitable division can be determined. Parties may choose not to hire an expert or not have the resources to do so. Unlike the complex proof needed in Mace, this is not a case that requires clarification on remand. The chancery court was not impeded in this matter because of the proof presented at trial. The chancery court found that “Randy’s 8.05 Financial Statement shows minimal income from the poultry operations” and that both Randy and Missy agreed the expenses he listed from the poultry farm were accurate. There is no reason to re-try this case when there is “minimal income” and the expenses were not in dispute.

¶18. Because it is the parties’ duty, and not the chancellor’s, to prepare and submit evidence for a valuation judgment, we find no abuse of discretion. It is clear that the chancery court’s decision was based upon the proof mustered by the parties at trial. It was the parties’ decision at trial to present slim proof. That choice will not result in reversal on appeal. This decision is affirmed.

As the court points out in ¶17, there are legitimate reasons why parties may choose not to have property appraised by a professional. Cost most certainly can be a factor. The parties may simply choose to leave it up to the chancellor to decide, although that is usually a crap shoot.

You can use requests for admission to help nail down values.

Just remember that the less precise your proof the more the matter falls within the chancellor’s discretion and judgment. And if there’s any proof at all in the record to support her findings, your chances of getting her reversed are practically nil.

Reprise: The Vital Importance of Checklists

June 10, 2020 § 1 Comment

Reprise replays posts from the past that you might find useful today.

Trial Factors aka “Checklists”

March 6, 2018 § Leave a comment

The MSSC threw down the gauntlet in 1983 in Albright v. Albright, mandating that trial judges must make findings of fact as to certain specific factors when making an award of child custody.

Since then, the number of factor-driven cases has multiplied. There are 13 now, by my count.

I call it “Trial by checklist” because you can reduce every list of factors to a convenient checklist that you can use at trial. I suggest you copy these checklists and have them handy in your trial materials. Build the outline of your client’s case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.

If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.

If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that, because failure to make findings with respect to the applicable factors is cause for remand  — an expensive do-over. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Child Support.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

I try to remind folks twice a year about the importance of using checklists in making your cases.

Constructive Desertion

June 9, 2020 § Leave a comment

It’s not often that constructive desertion cases come around, particularly on appeal, so when one does, it is noteworthy.

Kevin Watson claimed that his wife Carole was guilty of constructive desertion of him, entitling him to a divorce. Following a trial, the chancellor agreed and granted Kevin a divorce on that ground. Carole appealed.

In Watson v. Watson, decided June 2, 2020, the COA reversed and rendered. Here is how Judge McDonald’s opinion for an 8-0 court (Barnes not participating) addressed the issue:

¶8. The chancellor found that Kevin was entitled to a constructive-desertion divorce because “many instances [of Carole’s behavior] rise to the requisite level of conduct.” In so doing, the chancellor mentioned one specific incident that occurred during Kevin and Carole’s March 2013 trip to the British Virgin Islands. Otherwise, the chancellor found that Kevin was entitled to a constructive-desertion divorce due to “Carole’s combative public outbursts” and “Carole’s constant, and in many cases, irrational accusations against Kevin.”

¶9. The Mississippi Supreme Court has held that a constructive-desertion divorce is available under the following limited circumstances:

If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will not be guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.

Benson v. Benson, 608 So. 2d 709, 711 (Miss. 1992) (quoting Day v. Day, 501 So. 2d 353, 356 (Miss. 1987)). Said differently, “constructive desertion occurs when the innocent spouse is compelled to leave the home and seek safety, peace, and protection elsewhere because the offending spouse has engaged in conduct that would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety.” Hoffman, 270 So.
3d at 1126-27 (¶24) (internal quotation marks omitted) (quoting Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949)). [Fn 2] “Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases.” Id. at 1127 (¶24).

[Fn 2] “The line between . . . constructive desertion and . . . habitual cruel and inhuman treatment is blurred . . . .” Hoskins v. Hoskins, 21 So. 3d 705, 710 (¶21) (Miss. 2009). “[T]he only distinction” is that in a constructive-desertion case, one spouse “is compelled to leave and the [other spouse’s] objectionable conduct continues for a year.” Id.

¶10. The case is not one of those extreme circumstances. One basis the chancery court used to grant Kevin a divorce occurred in March of 2013. Kevin testified that Carole must have drugged him one night during their trip to the British Virgin Islands “[b]ecause one minute [he] was fine, and the next minute [he] wasn’t[,]” and Carole “always had Xanax and the drugs that she got . . . from her psychiatrist.” Although Kathy Boyd, who was among the four other people on the trip, said she “felt like Kevin had been given something” because his state was inconsistent with the alcohol that he consumed, neither she nor Kevin testified that they saw Carole put anything in Kevin’s drink. [Fn 3] There was also testimony in the record that both Carole and Kevin often drank to excess.

[Fn 3] Although Kevin also testified that “there were other instances . . . where that very same scenario took place . . . ,” he did not elaborate regarding when or how often those “other instances” occurred.

¶11. In addition to the insufficient evidence that Carole “drugged” Kevin on the trip, the March 2013 incident did not cause Kevin to leave the marital home. He continued to live there after the trip. Kevin did not tell Carole that he wanted a divorce until December 2013 and did not leave the marital home until approximately a month later. Thus, Kevin endured the supposedly unendurable marriage for approximately ten months after the incident in the British Virgin Islands.

¶12. As for Carole’s “combative public outbursts,” the evidence shows that during the seven years of their marriage, Carole once yelled at a restaurant staff, yelled at two women who cut past her in a line at a concert, and that she blurted out private marital details during a September 2013 dinner with friends. Again, however, this does not constitute substantial credible basis to conclude that Kevin was compelled to leave the marital home.

¶13. Kevin testified that the marriage first became unendurable for him during the summer of 2009 when Carole failed to adequately take care of herself, him, and the marital home. Those were three provisions of their unwritten four-point agreement that they purportedly entered when she stopped working in the latter part of 2007. Kevin also said that the marriage was unendurable because he and Carole “can’t stand to be in the same room together. I mean, it’s just unhealthy [and] . . . stressful. It’s depressing.” But Kevin continued to live with Carole for years thereafter.

¶14. As previously mentioned, our supreme court has commanded that constructive desertion divorces are available only in “extreme” circumstances. Lynch v. Lynch, 217 Miss. 69, 81, 63 So. 2d 657, 661 (1953). In one case, a constructive-desertion divorce was upheld where a wife ignored her blind husband’s protests and frequently left him at his relative’s house for days, left him without food during the week, and allowed her disrespectful grandson to live in the marital home for three years against his protests. Deen v. Deen, 856 So. 2d 736, 737 (¶¶4-6) (Miss. Ct. App. 2003). A constructive-desertion divorce was also available when a husband was subjected to his wife’s false accusations of adultery several times a week for approximately ten years. Lynch v. Lynch, 616 So. 2d 294, 295-97 (Miss. 1993). But a constructive-desertion divorce is not a remedy when a husband merely says there is “no marriage” and “no relationship,” and he began having an affair nearly one year before he left the marital home. Grant v. Grant, 765 So. 2d 1263, 1267 (¶¶10-11) (Miss. 2000). [Fn 4]

[Fn 4] The chancellor acknowledged that Kevin and another woman had been involved in a clandestine and emotionally romantic relationship for several months before Kevin told Carole that he wanted a divorce. Their relationship became physical approximately two weeks after Kevin finally left the marital home. Kevin did not disclose his relationship to Carole before he left, but she discovered it a few months later. The chancellor did not find that Kevin left Carole because he preferred to be with his paramour.

¶15. After a thorough review of the transcript and record, it is clear that Kevin became increasingly unhappy in the marriage because he felt as though Carole was not fulfilling her marital obligations to take care of herself, him, and the domestic sphere of the relationship. Carole certainly leveled many accusations against Kevin that were not borne out by the  record. Suffice it to say, there was clearly a significant amount of mutual animosity by the time of the divorce trial years later. But it would be unreasonable to find that Kevin’s abandonment of the marital home was the natural consequence of an alleged incident on a trip they took months earlier. See Griffin, 207 Miss. at 504, 42 So. 2d at 722. And it was undisputed that Kevin remained in the marital home for still another month after he told Carole that he wanted a divorce.

¶16. Notwithstanding the clearly acrimonious feelings between Carole and Kevin, the substantial credible evidence shows that “this case is yet another in our developing litany where . . . the problem [in the marriage] is [the couple’s] fundamental incompatibility.” Day, 501 So. 2d at 355. As such, this is not one of the “extreme cases” contemplated by our supreme court. It follows that we are compelled to reverse the chancellor’s judgment.

The main takeaway here is that constructive desertion is no easy path to a divorce. Not only must you make an “extreme case,” but you also have to prove the elements of desertion, about which I posted at this link. And don’t forget that the burden of proof is by clear and convincing evidence (HCIT is the only ground that requires only a preponderance of the evidence).

I posted about Hoskins here.

I’m still unsure why we don’t have some kind of incompatibility or separation ground for divorce. The argument I often hear against is that those would open the floodgates of divorce in Mississippi. That presumes that our restrictive laws are keeping those floodgates closed, which I perceive not to be the case at all. Every family-law practitioner in this state knows that our current statutory scheme fosters and even encourages “divorce blackmail,” which often results in inequitable and unfair settlements. I’m not sure that the state truly has a legitimate interest in preserving unhappy, unhealthy, and even dangerous marriages.

MSSC Clarifies the Relationship Between Alimony and Social Security Benefits

June 8, 2020 § Leave a comment

Before 2018, the rule in Mississippi was that an alimony payor was entitled to a dollar-for dollar credit against an alimony obligation for derivative Social Security (SS) retirement benefits received by the payee ex-spouse. Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).

Note: Derivative benefits are those derived from the payor’s SS entitlement, as where the payee elects to base benefits on the spouse’s earning record instead of his or her own, so as to receive a greater benefit.

That changed with the case of Harris v. Harris, 241 So.3d 622, 628 (Miss. 2018), which overruled Spalding and held that derivative SS benefits do not trigger an automatic modification of alimony, but that the trial court must “weigh all the circumstances of both parties and find that an unforeseen change in circumstances occurred to modify alimony.”

Then, in Alford v. Alford, decided July 23, 2019, the COA reversed and remanded a chancellor’s award of alimony because it did not take into account Linda Alford’s inevitable receipt of derivative SS benefits in its initial determination of alimony. The COA remanded the case to the trial court, but Linda filed a petition for certiorari with the MSSC.

The MSSC granted cert., and in Alford v. Alford, decided June 4, 2020, the court reversed the COA in part. At ¶2, the court’s opinion states:

“We granted certiorari because this Court has not answered whether a chancellor should consider Social Security benefits when considering initial alimony awards. We find that consideration of derivative Social Security benefits should be reserved for alimony modification proceedings.”

Justice Kitchens wrote for the unanimous court:

¶14. The Court of Appeals held that the chancellor should have considered Linda Alford’s near-future reception of derivative Social Security benefits when it made her initial alimony award because “Harris specifically holds that derivative Social Security benefits will not justify a subsequent modification of alimony if the benefits were anticipated or foreseeable at the time of the divorce.” Alford, 2019 WL 3297142, at *6 (citing Harris, 241 So. 3d at 628-29).

¶15. Linda Alford argues that the Court of Appeals erred in its interpretation of Harris. According to her, Harris concerned “whether the other financial circumstances of the parties had materially changed so as to warrant a modification of alimony, when coupled with the advent of Social Security benefits” and did not concern whether derivative Social Security benefits were foreseeable. This Court agrees. Harris did not hold that the future receipt of derivative Social Security benefits is a foreseeable circumstance that would not allow a subsequent modification of alimony; rather, Harris said that when an alimony recipient acquires derivative Social security benefits, the alimony payor may seek a downward modification of his or her alimony payments after the chancery court considers the totality of the parties’ circumstances, not merely the receipt of derivative Social Security benefits. Harris, 241 So. 3d at 628. We find that Harris requires the chancellor to examine the impact the reception of derivative Social Security benefits causes and not the reception alone. We find also that it is the unpredictable impact that stymies foreseeability at the time of the initial alimony award. Thus, we hold that the Court of Appeals interpreted Harris incorrectly. [My emphasis]

¶16. At the time of the Alfords’ divorce, the law regarding derivative Social Security benefits provided that the spouse paying alimony was entitled to an automatic credit toward his alimony obligation “because the amount was based on his income.” Harris, 241 So. 3d at 626 (citing Spalding, 691 So. 2d at 439). In 2018, this Court overruled Spalding “to the extent that it holds an alimony reduction to be automatic for Social Security benefits derived from the alimony-paying spouse’s income.” Id. at 624. The issue in Harris involved a modification of a property settlement agreement, and this Court held that

Social Security benefits derived from the other spouse’s income do not constitute a special circumstance triggering an automatic reduction in alimony. When a spouse receives Social Security benefits derived from the other spouse’s income, the trial court must weigh all the circumstances of both parties and find that an unforeseen material change in circumstances occurred to modify alimony. Harris, 241 So. 3d at 628.

¶17. Harris did not say that derivative Social Security benefits can never be a basis for modifying an alimony award, only that the reception of derivative Social Security benefits does not “trigger[] an automatic reduction in alimony.” Id. The Court in Harris said that when a person receives derivative Social Security benefits, there can be a later modification of alimony as long as the chancellor “weigh[s] all the circumstances of both parties and find[s] that an unforeseen material change in circumstances occurred to modify alimony.” Id. If we were to agree with the Court of Appeals that “derivative Social Security benefits will not justify a subsequent modification of alimony if the benefits were anticipated or foreseeable at the time of the divorce[,]” Alford, 2019 WL 3297142, at *6 (citing Harris, 241 So. 3d at 628-29), one would not be able to seek a modification under Harris because it is foreseeable that most Americans will receive Social Security benefits at some point in their lives.

¶18. The Court of Appeals found that it was “clearly foreseeable” that Linda Alford would receive derivative Social Security benefits “in the near future” and it was the reception of those benefits that would not justify a later modification according to Harris. Alford, 2019 WL 3297142, at *6. While it may be foreseeable that a litigant will receive Social Security benefits, the impact of the benefits on both parties cannot be anticipated or foreseen. The chancellor must consider such benefits in conjunction with “all the circumstances of both parties” in order to determine whether there is an “unforeseen material change in circumstances” that justifies modifying alimony. Harris, 241 So. 3d at 628. It also may be said that it is clearly foreseeable that a person will get older and/or a person’s health will decline; yet courts have determined that these foreseeable events sometimes can create unanticipated, unforeseeable material changes in circumstances that justify the modification of alimony. See Broome v. Broome, 75 So. 3d 1132, 1141 (Miss. Ct. App. 2011) (“The chancellor found T.C.’s standard of living dramatically decreased over the years since the divorce decree due to his poor health and advanced age.”); Makamson v. Makamson, 928 So. 2d 218, 221 (Miss. Ct. App. 2006) (“These are specific findings that the increased costs, length of time before treatment was to begin and the stroke were not anticipated in the property settlement agreement.”). Contra Weeks v. Weeks, 29 So. 3d 80, 90-91 (Miss. Ct. App. 2009) (“With the extensive testimony concerning Deborah’s medical problems and the state of her health before the judgment after remand was entered, we cannot say that the increased expenses due to the progression of these problems was in any way unforeseeable by the parties.”).

¶19. In Harris, this Court considered the South Carolina case Serowski v. Serowski in deciding whether a modification of alimony “due to the start of Social Security benefits” was automatic or “require[d] a showing of a material or substantial change in circumstances[.]” Harris, 241 So. 3d at 628 (citing Serowski v. Serowski, 672 S.E. 2d 589, 593 (S.C. Ct. App. 2009)). In Serowski, the court did not find that the spouse’s reception of Social Security benefits was a foreseeability that would not allow a modification of alimony. Serowski, 672 S.E. 2d at 593 (“[T]he court found Wife’s increase in income due to her receipt of social security and annuity benefits had improved her ability to meet her needs.”). Instead, the court upheld a modification of alimony by considering the impact the Social Security benefits had on the wife’s income in conjunction with the increase in the wife’s net worth and the husband’s decline in health. Id. at 593-94 (“[T]he court properly considered both parties’ economic circumstances in reaching its finding.” (citing Eubank v. Eubank, 555 S.E. 2d 413, 417 (S.C. Ct. App. 2001))).

¶20. Similarly, this Court determines that Harris does not hold that the mere reception of derivative Social Security benefits is a foreseeable circumstance that would preclude a subsequent modification of alimony. Harris, 241 So. 2d at 628. In Harris we reversed and remanded, not because it was foreseeable that a person would receive derivative Social Security benefits, but because the trial court had failed to perform the proper analysis and determine whether all of the circumstances, including the impact the reception of derivative Social Security benefits had on both parties, constituted an unforeseen material change in circumstances. Id. at 628-29. Merely receiving derivative Social Security benefits alone is not enough to allow a modification of alimony because there must be judicial consideration of its impact on the parties, a factor that is not foreseeable at the time of the divorce. See Ivison v. Ivison, 762 So. 2d 329, 334 (Miss. 2000) (“An award of alimony can only be modified where it is shown that there has been a material change in the circumstances of one or both of the parties.” (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995))); Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990) (“This change, moreover, must also be one that could not have been anticipated by the parties at the time of the original decree.” (citing Morris v. Morris, 541 So. 2d 1040, 1043 (Miss. 1989); Trunzler v. Trunzler, 431 So. 2d 1115, 1116 (Miss. 1983))).

¶21. We clarify our holding in Harris: when an alimony payor seeks an alimony modification based on the payee’s receipt of derivative Social Security benefits, the trial court must consider whether the impact of the derivative Social Security benefits on the parties constitutes a “material or substantial change in the circumstances[,]” Tingle, 573 So. 2d at 1391 (citing Clark v. Myrick, 523 So. 2d 79, 82 (Miss. 1988); Shaeffer v. Shaeffer, 370 So. 2d 240, 242 (Miss. 1979)), that arose after the original judgment and “could not have been anticipated by the parties at the time of the original decree[,]” Morris, 541 So. 2d at 1043; Trunzler, 431 So. 2d at 1116, and whether the change in circumstances calls for an alteration of alimony under the factors governing alimony awards from Armstrong, 618 So. 2d at 1280. See Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001) (“The chancellor must consider what has become known as the Armstrong factors in initially determining whether to award alimony, the amount of the award, and in deciding whether to modify periodic alimony, comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” (citing Tilley v. Tilley, 610 So. 2d 348, 353-54 (Miss. 1992))).

That foreseeability aspect has puzzled me through the years. Your unclaimed SS benefits stop accruing when you reach 70, so 99.9% of people claim their benefits before then. You can’t get much more foreseeable than that. I think the bold language in Alford, above, clarifies that it is not the claiming of benefits that is unforeseeable; rather it is the economic impact that is unforeseeable and opens the gate to modification.

I don’t generally post about a case that is subject to a motion for rehearing, but with this blog winding down and this case being important to practitioners, I decided to go ahead with it. Besides, it’s a unanimous decision, and in my opinion it’s unlikely (and unforeseeable) that rehearing would be granted.

“Quote Unquote”

June 5, 2020 § Leave a comment

“Always do right. This will gratify some people, and astonish the rest.”  —  Mark Twain

“Sometimes I worry about being a success in a mediocre world.”  —  Lily Tomlin

“The best politics is right action.”  —  Mahatma Gandhi

The Intent of the Testator and Extrinsic Proof

June 3, 2020 § 2 Comments

It is black-letter law in Mississippi that a court called upon to interpret a will is bound by the intent of the testator, and the court is limited to the four corners of the will itself.

But what is the court to do when the will contains a provision such as this:

I have five adult children … to whom I leave in equal shares, property I possess, whether real, personal or mixed (less any debt owing to me by any heir at the time of my death, to come out of that child’s part).

The will included no itemization of any debt, but there had been loans by the decedent to several of the children. How is the estate to prove it except by extrinsic evidence?

That was the conundrum presented to the trial court in a dispute between Sandra Brown and Tracy Walker and the Estate of their mother, Sarah Walker.

The estate filed a complaint for declaratory judgment, and at trial sought to prove the debts by a notarized statement that Sarah Walker had prepared in 2007. It spelled out each child’s debt; Sandra’s was $85,644, and Tracy’s was zero. The chancellor denied the estate’s request to consider evidence outside the will, citing the four-corners principle, and the estate appealed.

In Estate of Walker v. Brown and Walker, decided May 19, 2020, the COA unanimously reversed and remanded. Judge Lawrence wrote the opinion:

¶18. Scott argues that the court erred in denying his request to use extrinsic documentation to determine each child’s debt. In the opinion and judgment, the court stated the following:

The Court declines to find that such document should be considered a part of, or read together with, the Last Will and Testament.

. . . .

Sandra accurately advises the Court that parol evidence cannot be utilized to interpret the testator’s will unless the terms of the will are ambiguous. The Court specifically finds that the will is not ambiguous, and should be construed and interpreted solely by the terms of and on the four corners of the will itself. The written statement of debts ostensibly owed the decedent is merely an allegation by the decedent of debts owed at a particular point in time, which point was almost nine years prior to her death.

The court found that the will was not ambiguous and any evidence concerning potential debts owed to the decedent many years prior to her death was “merely an allegation” of potential debts owed. The court refused to consider the debts owed because they were not listed “within the four corners of the will.” Finally, the court ruled that Scott was not allowed to deduct any debt that was not “contained within the will itself.”

¶19. “Our polestar consideration, as always, is the intent of the testator, the right our law has given each competent adult to direct from the grave the disposition of [her] worldly goods.” Tinnin v. First United Bank of Miss., 502 So. 2d 659, 667 (Miss. 1987). It is well established that “a will speaks at the death of the testator.” Johnson v. Bd. of Trs. Miss. Annual Conference Methodist Church, 492 So. 2d 269, 276 (Miss. 1986); see also Robert A. Weems, Mississippi Practice Series: Wills & Admin. of Estates in Mississippi § 9-4, at 296 (3d ed. 2003). Further, a testator’s will should be enforced so as to avoid clearly unintended consequences. Johnson, 492 So. 2d at 276.

¶20. It is true that “[i]n determining the testator’s intent, in the absence of ambiguity, this Court is limited to the ‘four corners’ of the will itself.” Estate of Blount v. Papps, 611 So. 2d 862, 866 (Miss. 1992). The plain language of the will shows it was clearly Sarah’s intention to have each child’s debt deducted from his or her share. That intent was further evidenced by witness testimony. Sanford testified that Sarah added the debt provision in a revised draft to the original will and her clear intent was for each child to receive as equal share minus any debts owed to Sarah. Scott testified that he and Sarah had conversations about that provision and that he encouraged her to keep track of each child’s debt. Thereafter, Sarah created the July 16, 2007, statement, which neither party disputes she drafted.

¶21. Brown did not testify at the hearings but complains through pleadings that the debts should not be considered since those debts are not within the four corners of the will. That argument is misplaced. Under such a provision, if the testator were required to offset each child’s equal estate with those debts only listed in the will, every loan to a child would necessitate a new will or at least another codicil. In this case, the testator’s intent was clear. The testator wanted each child to receive a total equal share of her property, whether that share was accumulated by loans during the life of the testator or by the will after the death of the testator. Because each child was to receive an equal share, if a child had borrowed money from the testator during her life, those loans would be deducted to ensure each child had an equal share at her death. That clear intent would be subverted if a child could borrow from the testator throughout life and then receive an equal share of what was left of the estate upon the death of the testator. To hold otherwise would allow one child to obtain unfair and unequal parts of the estate to the detriment of the other children’s shares by simply obtaining loans.

¶22. The evidence was not offered to modify the terms of the will. Rather, it was offered to give effect to the clear intent expressed in the will. Therefore, the court should have factually determined if the evidence was credible and sufficient to prove the existence of debts or not and then acted accordingly consistent with the clear and unambiguous terms of the will. After review, we find that the July 16, 2007, statement, the calendar entries, and other documents offered into evidence, as well the testimony of witnesses, were evidence which should have been considered by the chancery court in an effort to determine the potential debt each child may have owed to Sarah. Thus, the chancellor should have considered the credibility and the sufficiency of the evidence offered and made factual findings as to each child’s debt, if any, to Sarah and then give the effect each deserved under the clear language of the will.

So, the process is for the court first to determine the intent of the testator from the four corners of the instrument itself, and then to consider whatever admissible evidence there is that fleshes out the testator’s intent.

In this particular case, though, the debts were outside the statute of limitations. Did that mean that they were uncollectable?

¶23. Brown also argues that any debt she owed as stated in the July 16, 2007, document is more than three years old, and therefore any collection of that debt would be barred by the statute of limitations. See Miss. Code Ann. § 15-1-29 (Rev. 2012). Brown’s argument is misplaced. The estate is not trying to collect any amount from Brown. Rather, the estate is simply trying to deduct that debt from her share of the inheritance.

In conclusion,

¶24. We find that the chancery court should have considered the evidence outside of the will to fulfill Sarah’s clear intent to have each child’s debt deducted from his or her share of the estate upon her death. Accordingly, we reverse the chancery court’s ruling and judgment and remand this case to the chancery court to determine what amount, if any, should be deducted from each child’s share in order to give legal effect to the clear intent of the



A Divorce Misfire

June 2, 2020 § Leave a comment

When the chancellor finds that the plaintiff has failed to meet the burden of proof to establish a ground for divorce, I call that a “misfire.”

After Karrah Wangler rested her case in chief for divorce against her husband, Richard, he moved to dismiss pursuant to MRCP 41(b), and the chancellor granted the motion, dismissing the complaint. Dissatisfied with the misfire, Karrah appealed.

The MSSC retained the case and, in its March 12, 2020, decision in Wangler v. Wangler, the court affirmed. The outcome is not all that remarkable, but the majority opinion includes a helpful exposition on the ground of HCIT. Judge Griffis’s opinion:

¶13. At the conclusion of Karrah’s case-in-chief, Richard moved to dismiss her complaint. In granting Richard’s motion and dismissing Karrah’s complaint for divorce, the chancellor found as follows:

[H]aving reviewed the pleadings, I’ve looked through all 13 exhibits that were admitted into evidence by stipulation, looking at the notes that I took during testimony, the [c]ourt finds that [Karrah] has failed to present adequate proof of habitual cruel and inhuman treatment[,] and after reviewing the standard set by the case law in the State of Mississippi, the [c]ourt is of the opinion that [Karrah] is not entitled to a divorce on the grounds of [habitual] cruel and inhuman treatment. So the [c]ourt would grant the motion to dismiss by [Richard].

¶14. Mississippi Rule of Civil Procedure 41(b) states, in pertinent part,

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

¶15. “The standard of review applicable on motion to dismiss under Rule 41(b) is different [from] that applicable to a motion for a directed verdict.” Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 258 (Miss. 1997) (citing Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359 (Miss. 1992)).

In considering a motion to dismiss, the judge should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).”

Id. at 259 (emphasis omitted) (citations omitted). “[This Court] will overturn the chancellor’s decision on a Rule 41(b) motion to dismiss only if the findings are not supported by substantial evidence, or the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Pittman v. Pittman, 195 So. 3d 727, 732 (Miss. 2016) (citing Stewart, 700 So. 2d at 259). “Legal questions, however, are reviewed de novo.” Id. (internal quotation marks omitted) (quoting Sanford v. Sanford, 124 So. 3d 647, 652-53 (Miss. 2013)).

¶16. A divorce on the ground of habitual cruel and inhuman treatment requires the following to be shown by a preponderance of the evidence:

[C]onduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Osborne v. Osborne, 202 So. 3d 639, 641 (Miss. Ct. App. 2016) (citing Richard v. Richard, 711 So. 2d 884, 889 (Miss. 1998)). Additionally,

Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:

That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or

That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

Miss. Code Ann. § 93-5-1.

¶17. “The conduct must consist of something more than unkindness or rudeness or mere incompatibility or want of affection.” Osborne, 202 So. 3d at 641 (internal quotation marks omitted) (quoting Horn v. Horn, 909 So. 2d 1151, 1155 (Miss. Ct. App. 2005)). “The offending spouse’s conduct . . . ‘must be shown to have been systematic and continuous.’” Baggett v. Baggett, 246 So. 3d 887, 892 (Miss. Ct. App. 2017) (quoting Horn, 909 So. 2d at 1155). “Further, the offended spouse must show a causal connection between the offending spouse’s conduct and the impact on the offended spouse.” Id. (citing Smith v. Smith, 90 So. 3d 1259, 1263 (Miss. Ct. App. 2011)). “Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct.” Id. (internal quotation marks omitted) (quoting Smith, 90 So. 3d at 1263). [Fn omitted]

The court went on for eight more pages to analyze the proof and ultimately agreed with the chancellor that Karrah had failed to meet her burden of proof.

In my court, where the grounds for divorce are contested, I require that the lawyers bifurcate the case and try it solely on the grounds. If the divorce is not granted, that is the end of that. If the divorce is granted, then the case proceeds to equitable distribution, alimony, and any other contested issues. The idea is that it saves the parties the expense of preparing to try the financial issues that the court might never reach if the divorce is denied. It also saves a couple of extra days in court if there is no divorce.

The Flip Side of Restricting the GAL

June 1, 2020 § Leave a comment

Last week we visited the MSSC’s majority decision in Barber v. Barberwhich held that it was error for the chancellor to exclude a GAL report from evidence and to limit the GAL’s testimony based on the GAL’s conclusion that allegations of abuse were unfounded.

Today we will look at Justice Ishee’s dissent, joined by Chief Justice Randolph and Justice Griffis. It’s somewhat lengthy by this blog’s standards, but it’s worth a read:

¶42. The statute requires the appointment of a guardian ad litem “when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151 . . . .” Miss. Code § 93-5-23 (Rev. 2018). As the majority acknowledges, more than a mere allegation is required to invoke the statute; the chancellor “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Maj. Op. ¶ 27 (internal quotation marks omitted) (quoting Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016)). “The statute should not be read ‘as requiring . . . the appointment of a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties.’” Carter, 204 So. 3d at 759 (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004)).

¶43. The majority sidesteps the question of whether there was a sufficient factual basis to trigger the statute. It appears instead to be satisfied with its supposition that “at the time of the appointment, the chancellor considered the requirements for a mandatory appointment to be met.” See Maj. Op. ¶ 34 n.6. From my own review of the record, I disagree; it appears that the chancellor appointed the guardian ad litem out of an abundance of caution, not because he had found that doing so was statutorily required. But regardless of the chancellor’s subjective intent, the appointment was not statutorily required because the allegation the children were abused was never substantiated. See Carter, 204 So. 3d at 759.

¶44. Sylvia leveled a cursory allegation of abuse after the chancellor awarded temporary custody to Mark—Sylvia alleged just that “Mark is guilty of conduct constituting abuse towards the minor children, inclusive of physical, verbal and emotional abuse.” The chancellor appointed a guardian ad litem to look into Sylvia’s allegation. The guardian ad litem was instructed to report back to the court whether appointment of a guardian ad litem was mandatory, but she was also to “report to this [c]ourt if there is even a shred of thought that there might be any danger to the child[ren].” The guardian ad litem reported back with no details about the allegations, just her conclusion that the allegations were “unsubstantiated at this time”—unsubstantiated is, again, a word this Court and the Court of Appeals have used to describe allegations that do not require the appointment of guardian ad litem. See Carter, 204 So. 3d at 759. Nonetheless, the guardian ad litem went on to recommend that the allegations “[rose] to the level that the [guardian ad litem] should be appointed as a permanent [guardian ad litem].” The chancellor then entered an order finding that the appointment of a guardian ad litem was “necessary and warranted.” The order instructed the guardian ad litem to “conduct an investigation” and to “make a recommendation,” but it did not say the appointment was mandatory under the statute. In fact, the chancellor’s order indefinitely appointing the guardian ad litem said nothing at all about the allegations of abuse.

¶45. Later, after the chancellor heard the details, he changed his mind about the need to hear the guardian ad litem’s report or recommendation. The chancellor found unequivocally that the appointment had been discretionary and that the allegation Mark had abused the children was not credible. He held,

[T]his Court is the ultimate arbiter of whether or not there is credible evidence of abuse or neglect that would trigger this Court appointing [a] guardian ad

And there is absolutely no doubt in this Court’s mind that after hearing the testimony, if this Court were to be asked to appoint a guardian ad litem based
upon the credible evidence, this Court would not appoint a guardian ad litem in this matter.

This matter is chock full of bad parenting, bad judgment, general knucklehead behavior and immaturity, which makes it consistent with about 90 percent of the cases that come to this Court.

As such, as the ultimate foundation upon which the guardian ad litem was appointed, and that is potential abuse, neglect of the minor child, in this Court’s view, not being credible or substantiated in any way, the Court would indeed grant the motion to exclude the guardian ad litem report, as well as this
Court would exclude the testimony of the guardian ad litem herein.

The chancellor reached this conclusion after hearing three days of testimony and conducting in camera interviews with the two oldest children.

¶46. In changing the guardian ad litem’s assignment to suit the needs of the case as it unfolded, the chancellor acted according to this Court’s prior direction—the chancellor’s order appointing a guardian ad litem “should not permanently bind the court should needs change as the litigation progresses.” S.G. v. D.C., 13 So. 3d 269, 281 (Miss. 2009). A chancellor has the authority to expand or limit the role of a guardian ad litem “as the needs of a particular case dictate . . . .” S.G., 13 So. 3d 281. “The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice” and her “role at trial may vary depending on the needs of the particular case.” Id. at 280-81. The majority notes these holdings but fails to give them effect. See Maj. Op. at ¶¶ 24-25.

¶47. I submit that reversible error cannot be found without a showing that the allegation of abuse was sufficiently substantiated and credible to make the appointment of a guardian ad litem mandatory under the statute. See Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759. No such showing has been made.

¶48. The Court of Appeals addressed a very similar scenario in the recent Kaiser v. Kaiser, 281 So. 3d 1136 (Miss. Ct. App. 2019). There, a chancellor appointed a guardian ad litem to investigate allegations the children had been endangered when the mother exposed them to her abusive boyfriend. Id. at 1140. The guardian ad litem was subsequently released without giving a final report or recommendation to the chancellor, after it became clear that the children had not been abused or neglected. Id. at 1141-42. The Court of Appeals found no error because the appointment had been discretionary:

Because allegations of abuse mandating the appointment of a GAL were not present in this case, the chancellor’s appointment of the GAL was discretionary and not statutorily mandated pursuant to section 93-5-23. When an appointment of a GAL is discretionary, the chancellor is not required to include his or her reasons for rejecting the GAL’s recommendation. Id. at 1142 (citing Porter, 23 So. 3d at 449).

¶49. Here, before trial, the allegation that the children were abused was bare and “unsubstantiated,” as the guardian ad litem found. It is not mandatory to appoint a guardian ad litem “based merely on an unsubstantiated assertion found in the pleadings of one of the parties.” Carter, 204 So. 3d at 759 (emphasis added) (internal quotation mark omitted) (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004). At trial, the most severe allegations leveled against Mark were that he had struck one of the boys on the top of the head with the handle of a kitchen knife (to get his attention) and had pushed his stepson (the oldest, about fourteen years of age) into a nest of yellow jackets. The appointment of a guardian ad litem is only mandatory when “the allegations of abuse and/or neglect rise to the level of a ‘charge of abuse and/or neglect’” under the Youth Court Law. Carter, 204 So. 3d at 759 (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). The chancellor had substantial evidence to support his ultimate finding that the credible allegations amounted to little more than “bad parenting, bad judgment, [and] general knucklehead behavior and immaturity.”

¶50. Applying Carter and Porter and Kaiser, I would find that the appointment of the guardian ad litem here was discretionary, not mandatory under the statute, and that no error resulted from the chancellor’s decision not to hear the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449; Kaiser, 281 So. 3d at 1142.

¶51. Finally, I would point out that this issue should be procedurally barred for two reasons. First, even though Sylvia admitted at trial that the allegation of abuse had to be sufficiently credible for the appointment of a guardian ad litem to have been mandatory, on appeal she entirely neglected to brief the question of whether her allegation of abuse was substantiated. See Carter, 204 So. 3d at 759. Like the majority, Sylvia just assumes the question was finally decided by the appointment of a guardian ad litem following allegations of abuse. I do not agree and would hold that reversible error cannot be found without a showing that the appointment really was required by the statute. See Porter, 23 So. 3d at 449. Since Sylvia failed to brief that question entirely, she has waived the issue on appeal. See Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (Miss. 2018) (“The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.” (internal quotation marks omitted) (quoting Jefferson v. State, 138 So. 3d 263, 265 (Miss. Ct. App. 2014))).

¶52. Sylvia also failed to proffer the guardian ad litem’s report or testimony. A party complaining of the exclusion of evidence is required to proffer that evidence. Gordon v. Wall (In re Estate of Waller), 273 So. 3d 717, 720 (Miss. 2019). This is so the trial court will have an opportunity to correct its mistake (if there was one) and so a reviewing court can judge whether the error was sufficiently important to require reversal. See id. Reversible error could only result here if the chancellor’s decision was contrary to the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449. Silvia elected not to make the guardian ad litem’s report and recommendation part of the record, so this Court can only speculate about whether its exclusion from evidence was reversible error.

¶53. The statute does not require the appointment of a guardian ad litem in response to a bare, unsubstantiated allegation of abuse. Carter, 204 So. 3d at 759. The appointment of a guardian ad litem here was therefore discretionary, so there was no error in the chancellor’s decision not to receive a report or recommendation from the guardian ad litem. Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759; Kaiser, 281 So. 3d at 1142. The issue is also procedurally barred because Sylvia failed to fully brief it and failed to proffer the guardian ad litem’s recommendation. I would affirm the chancery court’s judgment.

My thoughts:

  • I am persuaded by Justice Ishee’s reasoning. I think the chancellor intended this to be a discretionary appointment, and he changed the GAL’s role as the S.G. case had actually encouraged. Most significantly he did so only after three days of testimony and interviews with the children.
  • You can avoid a similar problem simply by asking your chancellor to include in the order appointing the GAL a finding whether it is discretionary or mandatory. Or, if you prepare the order, make sure you specify whether it is discretionary or mandatory.
  • This case highlights the importance of including more than mere allegations in your pleading if you are serious about charging abuse or neglect. You’ve got to give the judge facts that would be sufficient to support a case in Youth Court.
  • You should read ¶52 carefully, then copy it, print a few copies, and tape it to your computer screen, bathroom mirror, and your forehead; the concept is that important. If the judge excludes your evidence, you must make an offer of proof, aka proffer, or you may not bring it up on appeal. It’s enshrined in MRE 103(a). I’ve posted about this numerous times. When you try a case, you must be mindful that only part of your job is to persuade the chancellor; you also are making a record to win on appeal.