How You do it Back Home

August 30, 2016 § 1 Comment

Back in the early 70’s (that’s 1970’s, BTW), when I lived and worked in the Atlanta Metro area, I traded at a service station (that was before self-service) that had its own service and repair garage. It was off I-75, a favorite route for the millions of snowbirds on their way to Florida from Michigan, Indiana, Ohio, and points north. Over the service area was a prominent sign that read, “WE DON’T CARE HOW YOU DO IT UP NORTH.”

That comes to mind from time to time when a lawyer, usually from a larger metropolitan area to our west, encounters our way of doing business here and whines, “But that’s not how we do it in ____________ (fill in the blank for your favorite whining locale).”

The insinuation is either:

“We do it right back home, and you don’t do it the same, so you are wrong,” or

“I hate to have to adapt to your stupidity.”

Well, as much as you are loathe to have to adapt to our stupidity way of doing things, the deal is that we simply follow the rules and statutes as best we understand them. If you do that, too, you will find that your business will glide smoothly through our courts with nary a snag or delay. Don’t follow the rules and statutes and you will be hung up until you do.

And as for how you claim that you do it back home, I’m sorry, but some of the things that lawyers tell me about how they do business back in the Promised Land seems to have a soupçon of, shall we say, bovine effluvium. In my many years’ experience as a lawyer in various chancery districts around the state, I never encountered a chancellor who didn’t expect everything to be just right. So I refuse to believe we sitting chancellors have lowered our standards as far as some would have me believe.

I got so exasperated a couple of years ago with a lawyer who insisted that I include two pages of language vesting title in various individuals and removing clouds from title in a muniment of title judgment because “that’s what my chancellors do,” that I suggested he file his pleadings in one of those mythical districts where the chancellors don’t follow the law. This of course, he could not legally do because the property was in my district. My thinking was that if the chancellors there are so lax, jurisdiction should not matter. (Footnote: I won the argument)

We’re not unique in this district with our ways. When I practiced in chancery districts across the state, I found a wide range of customs and practices, but the common thread was that the chancellor in each district was doing his or her dead-level best to ensure that it was done right.

As you gad about the state in your legal perambulations, keep in mind that every chancellor has his or her own take on what the law requires, but each and every one of us is zealous to see that business in our courts is handled correctly and according to the rules and the law. Believe it or not.

By Their Deeds Ye Shall Know Them

August 29, 2016 § Leave a comment

In a series of transactions between 1993 and 1998, Mary Frances Wright gained ownership of some 18 acres of land from her mother, Annie Dora Conley, subject to Conley’s life estate in a portion of the property. The transactions effectively excluded Wright’s siblings from ownership.

Conley died in 2000, and Wright probated the estate as Administrator. Notice to creditors was published in 2002, and the estate was finally closed in 2004.

It was not until 2011 that Wright’s brother, Ulysses Conley, claimed that he first discovered the deeds conveying ownership to Wright. In 2013, he filed suit alleging that the transactions were illegal, asking that they be set aside.

Wright denied his claims and filed a motion to dismiss on the ground that Conley’s claims were barred by the statute of limitations (SOL).Following a hearing, the chancellor ruled that Conley’s claims were barred by the general three-year SOL. Conley appealed, claiming that the 10-year SOL regarding recovery of property governed, and not the three-year general statute.In Conley v. Wright, decided May 31, 2016, the COA affirmed. Judge Ishee wrote for the court:

¶8. Conley’s first argument on appeal centers around the chancery court’s application of the statute of limitations. In its order, the chancery court cited McWilliams v. McWilliams, 970 So. 2d 200 (Miss. 2007), for its proposition that the three-year general statute of limitations bars Conley’s claim. Conley is correct in his assertion that the Mississippi Supreme Court overruled McWilliams with respect to the applicable statute of limitations regarding recovery of land in Lott v. Saulters, 133 So. 3d 794, 799-801 (¶¶7-13) (Miss. 2014). In Lott, the supreme court clarified that since our Legislature has not created a statute shortening the limitations period for claims regarding land recovery in equity, the governing statute remains Mississippi Code Annotated section 15-1-9 (Rev. 2012). Id. at 799 (¶9). Section 15-1-9 provides for a ten-year statute of limitations for land recovery in equity through explicit reference to Mississippi Code Annotated section 15-1-7 (Rev. 2012), which states: “A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued . . . .” Hence, the chancery court did err in its inference that a three year statute of limitations was applicable.

¶9. However, this error was harmless. As noted by the chancery court, the most recently dated deed associated with the transfer of ownership of the property was filed and became a public record in November 1998. All three of the deeds that conveyed ownership of the property to Wright occurred between August and November of 1998 – almost fifteen years from the filing of Conley’s complaint. Nonetheless, the supreme court has noted that when a life estate is tied to property, the statute of limitations does not begin to run on a successive possessor’s claim to the property until the person holding the life estate has passed. In re Estate of Reid, 825 So 2d 1, 7 (¶¶18-19) (Miss. 2002) (citation omitted). Hence, Conley’s right to bring an action to recover the property accrued at the time Annie died in 2000.

¶10. Even assuming there was concealed fraud in the property’s conveyance through the 1998 deeds, the probate of Annie’s estate provided a review of the deeds specifically. Hence, Conley would have been charged with the duty of discovering the alleged fraud during this time through reasonable diligence. If nothing else, the 2002 publishing of a notice to creditors regarding the estate’s ownership was a glaring opportunity for Wright’s alleged fraudulent interest in the property to have come to Conley’s attention.

¶11. The exercise of reasonable diligence would have revealed any purported inconsistencies in the property’s ownership by 2002 at the very latest. We find no applicable exception to the statute of limitations at play here. This issue is without merit.

¶12. Finally, we address Conley’s assertion that he is due relief in the form of a constructive trust. After reviewing the record in this case, we find no mention of the issue of a constructive trust having been presented to the chancery court. It appears that Conley’s argument of a constructive trust has been presented for the first time on appeal to this Court. It is well settled “that issues not raised at trial cannot be raised on appeal.” Southern v. Miss. State Hosp., 853 So. 2d 1212, 1215 (¶5) (Miss. 2003) (citation omitted). “A trial judge cannot be put in error on a matter not presented to him.” Id. at 1214 (¶5) (citation omitted). Accordingly, we are without authority to address Conley’s argument regarding a constructive trust.

CONCLUSION

¶13. We acknowledge that the chancery court erred in its reference to the three-year statute of limitations. Indeed, the ten-year statute of limitations was the proper statute of limitations to be applied here. However, such an error was harmless considering the length of time from the accrual of Conley’s right to file the action and the date the action was filed. The deeds conveying the property to Wright became public record, at the latest, in November 1998. After Annie’s death in 2000, her estate was probated and a notice to creditors was published in 2002, thereby providing Conley with ample opportunity to take notice of Wright’s alleged fraudulent interest in the property had he exercised reasonable diligence. While Conley presents numerous explanations for the fifteen-year delay in filing suit, these explanations do not negate that he and his siblings had a duty to exercise reasonable diligence to discover any alleged error regarding the property’s ownership. We cannot find that the chancery court was erroneous in dismissing the action as barred by a statute of limitations. As we are without authority to review Conley’s argument regarding a constructive trust, we rest on our prior conclusions and uphold the judgment of the chancery court dismissing Conley’s action as time-barred.

Points to ponder:

  • In many districts, chancellors do not have staff attorneys to do research for them. They have to rely on the attorneys to furnish authority. Time to review and double-check that authority is at a premium, what with other trials, dockets in other counties in the district, administrative matters, and personal life (to which even chancellors are entitled). If you expect the chancellor to make an unassailable ruling, provide him or her with accurate and on-point, valid authority.
  • This case highlights just how effectively an estate can operate as a seal against later litigation. An inventory showing that the estate had no ownership interest in the 18 acres would have been pretty conclusive against Ulysses when he joined in the petition to close the estate. That’s one reason why I urge lawyers to do an inventory even when it has been waived in the will: it provides an additional layer of documentation of the estate assets that is hard, if not impossible, to assail once the estate is closed.

Reprise: The Role (or not) of Boilerplate Defenses in Divorces

August 26, 2016 § Leave a comment

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

THE BEST DEFENSE IS A BOILERPLATE

March 4, 2011 § 5 Comments

boil•er•plate. n 3.  Inconsequential, formulaic or stereotypical language.

Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:

The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Whew.  Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing.  After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed?  Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour?  We need to know these things.  Or, I guess we need to know them because they were pled.

Some of these defenses, foreign as they are to chancery court, do stir the imagination …

  • Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
  • Assumption of risk.  If you knew she was crazy when you married her, well …
  • Failure of consideration.  Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
  • Failure to mitigate damages.  My personal favorite.  Shifts the whole burden of blame, doesn’t it?
  • Laches.  So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
  • Lack of capacity to commit the offense.  This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
  • Pre-existing injuries or damages.  Another one with some wondrous possibilities.  “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
  • Release.  As in “Please release me; let me go, I don’t love you any more?”  Nah.
  • Res Judicata.  Don’t laugh.  There are possibilities here for folks who have remarried each other after a prior divorce judgment.
  • Statute of frauds.  Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
  • Statute of limitations.  The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
  • Waiver.  “But she told me it was okay for me to go out with Doris.”

Maybe you can come up with some imaginative offensive or defensive theories of your own.  If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.

Is HCIT of a Child Proof of HCIT of a Parent?

August 23, 2016 § Leave a comment

The marriage of Propst and Ty Pittman was by all accounts a stormy one that involved physical conflicts. There was testimony also that Ty had been physically violent in his dealings with the parties’ daughter, Tyler.

Propst filed for divorce from Ty on the ground of habitual cruel and inhuman treatment (HCIT).

After Propst rested in her case in chief, Ty moved per MRCP 41(b) to dismiss for failure of Propst to meet her burden of proof on the grounds for divorce. In a 10-page ruling, the chancellor analyzed the evidence. He concluded that Propst had failed to meet her burden of proof because her evidence was in general terms, the police had never been called to the disturbances, and she had only sought medical attention with respect to one incident. The judge did not address the testimony as to the incidents involving solely Tyler.

The COA affirmed, and the MSSC granted cert. In its decision in Pittman v. Pittman, rendered June 2, 2016, the court noted that, “In his ruling, the chancellor failed to make any factual findings regarding the violence against Tyler [Fn omitted]” and “We acknowledge that this Court has not made a clear pronouncement that violence against a child can be considered as habitual cruel and inhuman treatment of a spouse, and we thus recognize that this lack of a clear pronouncement may be why the chancellor understandably failed to make any factual findings regarding the violence against Tyler.”

The majority opinion, by Justice King, continued at ¶14:

… Thus, we will examine the legal question of [Fn omitted] whether violence against a child may be considered in the determination of whether one spouse has engaged in the habitual cruel and inhuman treatment of the other spouse. This Court has certainly considered the traumatic and detrimental effect a tumultuous marriage has on children when considering whether a divorce should be granted based on habitual cruel and inhuman treatment.[Fn 6] See, e.g., Richard, 711 So. 2d at 889. Moreover, the Court of Appeals, a court which chancery courts are bound to follow, has considered evidence of child abuse or mistreatment as conduct that supports granting a divorce based on habitual cruel and inhuman treatment. In  Jones, the Court of Appeals detailed the husband’s inappropriate sexual behavior with the couple’s children and considered it as supporting the chancellor’s grant of divorce for habitual cruel and inhuman treatment. Jones, 43 So. 3d at 476-77. The Court of Appeals noted that the wife “found this behavior offensive and alarming.” Id. at 477. In Keller v. Keller, a case incorrectly cited by the chancery court in this case, [Fn 7] the Court of Appeals noted that the record indicated that the husband had committed at least one instance of physical violence, by throwing a shoe at his wife, that he refused to have sexual relations with his wife and told her to “get a boyfriend” if she wanted sexual relations, that he forced his wife to do heavy physical work in the house and yard without his help, and that he humiliated her in front of family and friends. Keller v. Keller, 763 So. 2d 902, 908 (Miss. Ct. App. 2000). The Court of Appeals found that “[w]hether these facts alone would have been sufficient or not, we find the scales to shift markedly in favor of the divorce with the evidence that Mr. Keller beat his wife’s son from her first marriage[.]” Id. The Court of Appeals detailed the physical and verbal abuse of the child, as well as Mr. Keller’s demands that Mrs. Keller convey custody of her son to her ex husband or her parents, and stated that “[t]his was ‘cruel and inhuman treatment.’” Id. at 908- 09.

[Fn 6] The chancellor in this case did not appear to consider the detrimental effect of the tumultuous marriage on the children. Part of his reasoning for dismissal was that Propst was more concerned with the effects of Ty’s derogatory comments toward her on the children, than on herself.

[Fn 7] The chancery court stated that “In the afore-cited Keller v. Keller, the Court did not find sufficient grounds to award a divorce.” At that point, the chancellor then stated that the evidence in the case at hand did not meet the elements of habitual cruel and inhuman treatment. In Keller, both the chancery court and the Court of Appeals found sufficient grounds to award a divorce based on habitual cruel and inhuman treatment. Keller v. Keller, 763 So. 2d 902, 904, 908-09 (Miss. Ct. App. 2000).

¶15. It is common sense that abuse or mistreatment of a person’s child may constitute cruelty to that person. [Fn 8] Such conduct may certainly be “so unnatural and infamous as to make the marriage revolting to the” party seeking relief and “render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance,” provided the party seeking relief proves by a preponderance of the evidence that the abuse or mistreatment of the child was so unnatural and infamous to the party as to make the marriage revolting to that party, or that it contributes, along with other factors, to rendering the marriage revolting to that party. See Richard, 711 So. 2d at 888. Indeed, “[i]t would be difficult to imagine a course of conduct that would be more intolerable or unbearable, or that would be more subversive of the family relationship, than harsh and abusive treatment of a child.” Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962). We take this opportunity to clarify that chancery courts may consider evidence of child abuse or mistreatment as conduct supporting the grant of a divorce based on habitual cruel and inhuman treatment. [Fn 9] It is not clear that the chancery court in this case considered the alleged instances of physical violence and other mistreatment by Ty against Tyler in determining whether Propst had presented evidence of habitual cruel and inhuman treatment sufficient to defeat Ty’s Rule 41 motion to dismiss; thus the court did not apply what we now clarify is the appropriate legal standard. We therefore reverse the chancery court’s grant of Ty’s Rule 41 motion to dismiss and remand the case for further proceedings so that the chancellor may have the opportunity to consider the violence against Tyler in light of our clarification of the law. On remand, the chancellor should specifically consider and make findings regarding Ty’s treatment of Tyler in determining whether Propst has presented evidence sufficient to defeat Ty’s Rule 41 motion to dismiss regarding her entitlement to a divorce based on cruel and inhuman treatment.

[Fn 8] Additionally, trapping spouses and children in familial arrangements simply because the child, rather than the spouse, was the victim of abuse or mistreatment makes little sense and it certainly cannot have been the Legislature’s intent to imprison those children in abusive situations simply because their nonviolent parent could not obtain a divorce. Incidentally, the nonviolent spouse would have a duty to report any child abuse or neglect committed by the other spouse. See Miss. Code Ann. § 43-21-353(1) (Rev. 2015). That parent could also be held criminally liable in certain instances for failing to report his or her spouse. See Sherron v. State, 959 So. 2d 30 (Miss. Ct. App. 2006) (mother who helped minor child get an abortion after rape by mother’s husband found guilty of being an accessory after the fact to statutory rape, and was not entitled to a mitigating defense instruction that a failure to report was not a crime, because she did have an affirmative duty to report the abuse of her daughter).

[Fn 9] Other states have held likewise. See Jaikins v. Jaikins, 122 N.W.2d 673 (Mich. 1963) (noting the court’s duty toward the children, and stating that “mistreatment of children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty by the guilty party which justifies a divorce.”); Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962) (Mistreatment of a child constitutes an “indignity.”).

The court noted in Fn 6 (omitted in this post) that the GAL had developed some evidence of physical violence toward Tyler.

HCIT has been the graveyard of many a divorce case. This holding will give you an additional avenue by which you can make a viable case.

 

 

Breast-Feeding and Visitation

August 22, 2016 § Leave a comment

Among the many reasons parties request restricted visitation is to accommodate breast-feeding schedules.

That was the issue in the case of May v. Arthurs, decided by the CAO on June 28, 2016.

Derek May sued Kira Arthurs to establish paternity of their baby, Mason, born January 29, 2014. One of the issues for the court to decide was Derek’s visitation. Kira was breast-feeding the baby at the time of the trial on October 14, 2014.

Following the hearing, the chancellor concluded that the baby was “still using breast milk and [Kira had] the right to continue breast-feeding.” The COA opinion, by Judge Lee, sets out the visitation ordered by the court:

 ¶5 … At the time of trial, Derek was exercising weekend visitation every other weekend from Saturday at 10 a.m. to Sunday at 4 p.m. The chancery court ordered this to continue until Mason reached eighteen months of age or was totally weaned from breast milk, whichever occurred first. Then Derek would have visitation every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.

¶6. Regarding summer visitation, the chancery court ordered Derek would have Mason beginning June 1, 2015, for a three-week period. Derek would also have Mason beginning July 1, 2015, for a three-week period.

Both the weekend and summer visitation were restricted until Mason reached the age of 18 months or was completely weaned, whichever occurred first.

The COA vacated the order, reversed, and remanded:

¶13. “Child visitation, and its limitations, are awarded at the chancellor’s broad discretion.”Cassell v. Cassell, 970 So. 2d 267, 271 (¶17) (Miss. Ct. App. 2007) (citing Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “The chancellor must keep the best interest of the child as a paramount concern, while being attentive to the non-custodial parent’s rights.” Id. (citing Faris v. Jernigan, 939 So. 2d 835, 839-40 (¶8) (Miss. Ct. App. 2006)). “The court should be concerned with the need for the non-custodial parent and child to maintain a healthy and loving relationship.” Id. at 271-72 (¶17).

¶14. “When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child.” Id. (citing Cox v. Moulds, 490 So.2d 866, 867-68 (Miss. 1986)). “A lack of this evidence will render the chancellor’s restrictions on  the non-custodial parent’s visitation manifest error and an abuse of discretion.” Id. (citing Fulk v. Fulk, 827 So. 2d 736, 742 (¶21) (Miss. Ct. App. 2002)).

¶15. The record before this Court fails to demonstrate that the restriction on summer visitation was reasonable or necessary to prevent harm to Mason. Rather, Kira offered every other-week visitation in the summer until Mason was older. Kira testified that while Mason was an infant, she “would like it to be a little more consistent.” It was the chancellor whose “only concern [was] the breast-feeding.” Therefore, we vacate the chancellor’s summer visitation award and remand the case for the chancellor to revisit the issue of summer visitation consistent with this opinion. However, we affirm the chancellor’s weekend visitation award.

One fact undercut Kira’s position. You can find it at footnote 4, which states: “Kira provided breast milk whenever Derek had visitation, and the breast milk was being supplemented with solid foods as well as apple juice and water.” Translation: Derek was able to meet the baby’s need for breast milk when he had visitation; ergo, it was unnecessary to restrict his visitation.

I don’t see a lot of precedential value in this case vis a vis breast-feeding in particular. Breast-feeding is treated the same as any of the many other reasons that people advance to support their claims that visitation should somehow be restricted. Every one of these cases is fact-intensive and calls for more than mere allegations or assertions. There must be proof that the restriction is necessary to avoid harm to the child. Meeting that standard should not be a big challenge to most lawyers.

Dispatches from the Farthest Outposts of Civilization

August 19, 2016 § 1 Comment

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The Price of Admission

August 17, 2016 § Leave a comment

Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.

It can cut both ways, though.

In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.

The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.

Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:

¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.

However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).

¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).

¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.

¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:

[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.

You can take away at some points:

  • Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
  • The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
  • The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
  • Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
  • But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
  • Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.

The Power of Prayer

August 16, 2016 § 1 Comment

In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:

” … he’d better pray longer and harder.”

Chickenfeed Brings the Chickens Home to Roost

August 15, 2016 § 8 Comments

Our legislature slashed the Department of Mental Health’s budget, and that agency, forced to do its job on mere chickenfeed, has slashed services. It’s a topic I’ve discussed before here and here.

Now the chickens have come home to roost, as the saying goes. The U.S. Justice Department has sued the state (that’s us) for violations of the Americans with Disabilities Act and some other federal laws. You can read about the suit here.

Business as usual in Mississippi: we have to be sued time and time again to make our state do the right thing, or the constitutional thing, or simply to abide by the law.

Some Random Thoughts and Tips on Probate Practice

August 12, 2016 § Leave a comment

Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?

Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.

Here are some thoughts about probate, along with a few tips:

  • MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
  • UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
  • For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).

TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.

TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.

  • If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
  • There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
  • Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
  • Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.
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