” ‘TIL DEATH DO US PART” — OR MAYBE NOT
August 24, 2010 § Leave a comment
Charles Allen and Janet Allen were divorced in 2002, but they continued a relationship and even resumed wearing their wedding rings. They opened a joint checking account and made plans to move in together. They spent every weekend together, and Charles even had a private line installed in Janet’s residence so that they could talk with one another whenever they wished. Janet said “It was like we were never divorced.” Eventually, they saw where the relationship was headed and decided to set aside the divorce so they could get back together.
On May 17, 2006, they filed a joint petition in the Chancery Court of Pearl River County to revoke the divorce as provided in § 93-5-31, MCA. So far, so good. Only problem is that Charles died June 16, 2006, before the court could hear any testimony on the petition.
The specific code section invoked by the joint petition reads as follows:
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
The Chancellor quashed the petition nearly a year later on condition that he would allow Janet to file a timely request for reconsideration if she could show sufficient facts of reconciliation.
Janet did file for reconsideration, and the Chancellor found after hearing that she had presented proof sufficient to satisfy the criteria for revocation of the divorce. He entered a judgment revoking the divorce, and the Administrator of Charles’s estate appealed.
In Carlisle v. Allen, 2009 WL 1758864 (Miss.Ct.App. June 23, 2009), a case of first impression, the Court of Appeals reversed, holding that, although Janet had produced sufficient evidence to support a finding of reconciliation, the trial court has no authority to reinstate the marriage because of Charles’s death. The court reasoned that since death of a party to a divorce ends the status of marriage and would even have the effect of nullifying a divorce action, the purpose of the statute, which the court found was “to reunite two formerly married persons as a married couple,” would be thwarted because there “is no status of marriage upon which to operate.”
Janet filed a petition for certiorari, which was granted.
On cert, the Supreme Court reversed the Court of Appeals and reinstated the Chancellor’s decision. In Carlisle, Adm’r of the Estate of Allen v. Allen, No. 2007-CT-02047-SCT, the court held that Janet had met all of the criteria of the statute, had presented satisfactory evidence in support of it, and that it was not error for the Chancellor to grant the revocation in such a situation, regardless of Charles’s intervening death. The opinion pointed out that there is nothing in the statute that required both parties to be alive when the revocation is ordered, and that it was error for the Court of Appeals to analogize the action to a divorce action, where the applicable law is not necessarily the same.
There are some procedural disagreements between the majority and the dissenters that hinge on the timeliness of the motion to reconsider and the trial court’s jurisdiction as a result. That is an issue for another post.
As a practical matter, this case is mostly of academic interest since petitions for revocation are pretty rare. I only presented two in 33 years of practice and have had none come before me on the bench. Interestingly, I did have a case where my client died before the divorce judgment could be signed by the Chancellor, but after the Chancellor had rendered his opinion from the bench. In that case, White v. Smith, 645 So,2d 875 (Miss. 1994), the Supreme Court upheld Chancellor Shannon Clark’s entry of a Judgment of Divorce nunc pro tunc after the death.
This Allen case raises what I consider to be a couple of valid questions: Why do we need this statute? Would we not be better off if it were repealed?
The first question is based on the simple fact that the parties are free to remarry at any time with little bureaucracy, which is in my opinion the preferable manner to effect their reunion. Why would they prefer to hire an attorney, draft pleadings, set a court date, appear and testify, and await the judge’s ruling? I am speculating here, but I believe it is reasonable to assume that this statute is an adjunct to the Chancellor’s power to forbid the remarriage of the parties due to adultery (still in the code at § 93-5-25, MCA), and perhaps this statute was a way for parties to get around that injunction. In any event, I am not aware of any case in my career in practice or on the bench where a Chancellor has entered such an injunction, and certainly not in the 21st century. What other reason is there for this law to continue in effect?
My second question stems from the fact that since this statute was enacted, the landmark Ferguson case and its offspring have taken root in our jurisprudence, giving rise to many questions about the accumulation of marital assets between the time that the divorce judgment is entered and the date it is revoked. Consider, for example, that the husband got title to the former marital residence in the divorce and has made all mortgage payments in the interim. Is the residence restored to its status as marital property (notwithstanding title)? And what are the parties’ respective equitable interests in it? Remarriage would set a clear demarcation as opposed to revocation, which raises more questions than it answers.
Something to think about.
WHEN IS MODIFICATION OF CHILD SUPPORT EFFECTIVE?
August 23, 2010 § Leave a comment
A judgment modifying child support upward may be effective on the date that the petition is filed, or on a later date “within the sound discretion of the trial court.” Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991). In Frazier v. Burnett, 767 So.2d 263, 268 (Miss. App. 2000), the court stated that the “best practice” is to make the modification retroactive to the date of filing.
A judgment modifying child support downward or terminating it may not be retroactive because each child support payment vests when and as due, and may not be forgiven. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).
§ 43-19-35 (4), MCA, effective July 1, 2010, and repealed automatically July 1, 2011, includes the following curious language:
(4) “Any order for support of minor children … shall not be subject to a downward retroactive modification. An upward retroactive mofidication may be ordered back to the date of the event justifying the upward modification.” [Emphasis added]
What exactly is the date of the event that would justify the upward change is not defined, nor have there been any cases construing the statute.
The question arises from time to time whether the court may order retroactivity without a request therefor in the pleading. Chancellors in my experience are split, some taking the position that it must be pled, some saying that it need not be since it is in the discretion of the trial judge. My own position is that it is a simple Fifth Amendment due process matter. You are trying to take someone else’s money, and because you are, you are required to put that person on notice and afford the opportunity to defend. In my opinion, the opposing party needs to be put on notice of whatever relief you are seeking, including retroactive modification, and that without that notice, the court can not grant your client that relief.
Clearly the safest position is to include a prayer for retroactive relief in every petition to modify child support. Get in your computers and add that language to your petition for modification of child support.
RECEPTION FOR DEAN GERSHON
August 23, 2010 § Leave a comment
There will be a reception for new Ole Miss Law School Dean Richard Gershon at the offices of Hammack, Barry, Thaggard & May on Thursday, August 26, 2010, at 5:00, p.m. All members of the bar are invited to visit with and meet Dean Gershon, whose tenure as Dean began on July 1, 2010.
JAMES O. DUKES PROFESSIONALISM PROGRAM
August 20, 2010 § Leave a comment
I participated yesterday in the James O. Dukes Professionalism Program at the Ole Miss Law School. The program is part of the orientation for new law school students and is offered at both Ole Miss and Mississippi College.
Lawyers and judges volunteer to serve as facilitators for discussions involving situations that commonly confront legal practitioners with ethical questions. The facilitators this year included Supreme Court Justices, Court of Appeals Justices, Chancery Judges, Circuit Judges, County Judges and lawyers. Judge Bailey, Bill Hammack and I were there from Meridian.
This was my first year to participate. In years past, it seems I always had a conflict with trial settings that took precedence.
The program opened in the Ford Center with an introduction by the new Law School Dean, Richard Gershon, followed with remarks by Nina Stubblefield Tollison, President of the Mississippi Bar, who introduced the keynote speaker, Chief Justice William Waller, Jr.
Justice Waller’s address focused on three lawyers, L.Q.C. Lamar, Thurgood Marshall, and Evelyn Gandy, and their contributions to society in their day.
Following the opening program, the 200 or so entering freshmen and facilitators crossed the bridge over the Hilgard Cut and went to the Law School, where we participated in breakout sessions in which facilitators were assigned to different groups of students. Each freshman law student receives a set of hypotheticals; the facilitators receive the hypos and some guidance material such as the applicable professional rules.
Going in, I wondered whether incoming law students would “get it” when trying to tackle legal ethics questions. After all, what do these young people with no legal training know about legal ethics? I shouldn’t have been concerned.
Our group of eleven students were from Mississippi, Tennessee, Kentucky, Ohio and maybe some other places I don’t recall now. At least one had a master’s degree. All were sharp and articulate, and without exception showed a quick grasp of the rights and wrongs and do’s and don’ts, even when thrown curveball questions to test their understanding.
David Mockbee of Jackson and Stacie Zorn of Pascagoula were my fellow facilitators, and they did a super job of leading their parts of the discussion and keeping things interesting and interactive.
Lunch followed the breakout session, and I was fortunate to sit with some of the new students who had been in our group. I enjoyed my visit with them, and I have the feeling they will all be successful.
I came away feeling refreshed, like I had gotten back in touch with something basic. I was encouraged at the intelligence and energy of these young people. In a few years they will be the next infusion of fresh blood that invigorates our profession every year. I am looking forward to see them step onto the legal stage.
I encourage you to consider volunteering for this worthwhile program in the future, either at Ole Miss or Mississippi College. It will give you a break in your routine, and it may just be the boost you need.
ANSWERS TO WICKED MISSISSIPPI TRIVIA
August 20, 2010 § Leave a comment
1. Which Mississippi county changed its name in 1865 to Davis County in honor of Jefferson Davis and the name of its county seat to Leesburg, in honor of Robert E. Lee? What was the name of the original county seat? (Note: the names were restored to their originals in 1869).
It was Jones County. Ellisville was the original county seat, because Laurel, which is now one of the two county seats, was not founded until 1882.
2. What is the present-day name of the Mississippi county that was established in 1871 as Colfax County?
Clay. Colfax County was created in 1871 from parts of Chickasaw, Lowndes, Oktibbeha and Monroe. It changed its name in 1876 to honor Henry Clay.
3. From which present-day county did Bainbridge County separate in1823, only to merge back into its original county in 1824?
Covington. There is no record of the reason for the establishment of Bainbridge county, or for its dissolution, nor is there any identfication of the person or place for whom the county was named in the act establishing it.
4. What is the present-day name of the Mississippi county that was established in 1874 as Sumner County?
Webster. The county was renamed in honor of Daniel Webster in 1882.
5. In 1918 , the last county to be established in Mississippi was formed. What is its name?
Humphreys. Named for Benjamin Humphreys, 26th governor of Mississippi.
6. What present-day county seat was founded in 1832 as the Town of Jefferson? (Note: no relation to the Faulkner’s fictional town of the same name).
7. John L. Sullivan defeated Jake Kilrain in 1889 in the last official bare-knuckled bout in what was then Perry County. In which present-day county is the site located?
Forrest. Forrest County was carved out of the western part of Perry County in 1908.
8. President James K. Polk owned a 1,120-acre estate in the Troy community of which present-day county from 1835-1849?
9. Which Mississippi county seat was the home of thirteen generals of the Confederacy?
Holly Springs. The original name of the town was “Suavatooky,” which would have been a nightmare for today’s image-conscious tourism promoters.
10. Which Mississippi town was named after a newspaper published in another state?
Picayune. Eliza Jane Nicholson, a famed poet and resident of Pearl River County, was editor of the New Orleans Picayune, now the Times-Picayune, and the town was named in honor of her achievements.
11. In which Mississippi county did Teddy Roosevelt’s famous bear hunt take place in 1902 in the community of Smedes?
Sharkey. Smedes was the name of the train landing at Onward Plantation in Sharkey County. Onward, which is the surviving community in the vicinity of the plantation, is usually given as the locale, since the train landing has long since disappeared. You can read the fascinating story how African-American Holt Collier, legendary bear hunter, former slave, Confederate soldier and Texas cowboy, guided Roosevelt on his hunt here.
12. In which Mississippi county does the “Southern cross the Dog?”
Sunflower. At Moorhead, where a line of the Southern Railway crossed the Yazoo and Delta (YD=Yellow Dog, or “Dog”) at a 90-degree angle, reputedly the only place in the western hemisphere where two rail lines cross at a perpindicular. The junction is mentioned in blues recordings, notably by W.C. Handy and Bessie Smith.
13. Which Mississippi county’s name is derived from an Indian name meaning “tadpole place?”
Yalobusha. Some other unusual names: Pontotoc means “weed prairie” or “land of hanging grapes”; Noxubee means “stinking water,” and Oktibbeha means “bloody water”; and Attala was named after the heroine of an 1801 novella by Franois-Rene de Chateaubriand, spelled Atala in his work.
24 HOURS LEFT FOR TRIVIA
August 19, 2010 § Leave a comment
The answers to Wicked Mississippi Trivia will be revealed in 24 hours. How many have you figured out? I know one person who has them all but a couple.
There are a couple of lifelines if you need them.
Post your best guesses as a comment to Wicked Mississippi Trivia, if you dare.
NEW RIGHTS OF PARENTS ON ACTIVE MILITARY DUTY
August 19, 2010 § Leave a comment
Section 93-5-34, MCA, which sets out certain custodial and visitation rights of parents who are called to active military duty, has been amended to add some new wrinkles. It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.
The amended statute now applies also to persons related by blood or marriage to a deployed military parent, and may include, step-parents, grandparents, aunts, uncles, adult siblings and others.
It adds the requirement that any order entered affecting custody of or visitation with a parent called to active duty shall require:
- that the non-deployed parent shall make the child or children reasonably available to the deployed parent when he or she is on leave.
- that the non-deployed parent shall facilitate opportunities for telephonic, webcam and e-mail contact between the deployed parent and the child or children during deployment, and that
- the deployed parent shall provide timely information regarding his or her leave schedule to the non-deployed parent.
August 18, 2010 § 1 Comment
The answers to Wicked Mississippi Trivia will be posted Friday.
If you haven’t yet given up completely, you may find some help here, and you definitely will find some answers here.
ADMINISTRATION OF AN INTESTATE ESTATE
August 18, 2010 § 9 Comments
[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
Statutory order of preference for appointment of Administrator. § 91-7-63, MCA.
- Surviving spouse.
- Next of kin, if not otherwise disqualified.
- Other third party, bank or trust company.
- If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
- If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed. § 91-7-79 and -83, MCA.
Oath and Bond.
- At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
- At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir. § 91-7-67, MCA.
Notice to Creditors.
Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:
- Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.
- Administrator must file affidavit of known creditors and attest to having served actual notice on them.
- After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate. The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
- Administrator must file proof of the newspaper publication with the court.
- Publication may be waived by the court in small estates with a value not more than $500.
Inventory and Appraisal.
- Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration. § 91-7-145, MCA.
Determination of Heirs.
- An action to determine heirs must be brought before the estate may be closed.
- Publication process to the unknown heirs of the decedent must be made.
- Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.
- Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
- A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
- A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.
Petition to Close Estate and Discharge Administrator.
- The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
- Final account is filed with petition, unless excused by the court.
- All parties in interest are summoned to a hearing on the final account and petition to close. § 91-7-295, MCA.
- If approved, the court enters judgment for final distribution of any property in the Administrator’s care. § 91-7-297, MCA.
- Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees. § 91-7-299, MCA.
BIRTHPLACE OF AMERICA’S MUSIC
August 18, 2010 § Leave a comment
What do all these professional Mississippi musicians have in common?John Alexander, Metropolitan Opera star Steve Forbert, singer songwriter George Atwood, bass player for Buddy Holly Ty Herndon, country singer Paul Overstreet, country singer songwriter Julian Patrick, Broadway and Metropolitan Opera singer Moe Bandy, country music singer songwriter Eddie Houiston, southern soul singer Don Poythress, country and gospel singer songwriter Clay Barnes, guitarist for Steve Forbert and Willie Nile, session artist for the Who Bobby Jay, rock and roll, soul and R & B musician Carey Bell, blues harmonica player for Muddy Waters Duke Jericho, blues organist for BB King David Ruffin, member of the Temptations Cleo Brown, blues, boogie and jazz pianist and vocalist Sherman Johnson radio show host and juke joint owner Pat Brown, southern soul R & B singer John Kennedy, country bmusic songwriter Jimmy Ruffin, R & B and soul singer, recorded “What Becomes of the Broken-Hearted?” Mike Compton, bluegrass mandolin player featured on soundtrack of “O, Brother, Where Art Thou?” Cap King, blues musician Patrick Sansone, guitarist for Wilco and Autumn Defense George Soulé, singer songwriter Lovie Lee, blues singer George Cummings, composer, guitarist Paul Davis, singer songwriter Scott McQuaig, country music singer songwriter Brain Stephens, drummer Chris Ethridge bass guitarist for Flying Burrito Brothers, Willie Nelson and International Submarine Band Elsie McWilliams, songwriter, Country Music Hall of Fame Ernest Stewart, blues singer Patrice Moncell, blues, soul, jazz and gospel vocalist Dudley Tardo, drummer for the House Rockers, featured in the movie “Last of the Mississippi Jukes” Rosser Emerson, blues musician Steve Moore, country and rock guitarist Cooney Vaughn, blues pianist William Butler Fielder, jazz trumpeter and professor of music at Rutgers University Theresa Needham, Chicago blues club owner Hayley Williams, lead singer for Paramore Alvin Fielder, jazz drummer Duke Otis, band leader Al Wilson, soul singer and drummer Jimmie Rodgers, father of country music, Rock and Roll Hall of Fame, Country Music Hall of Fame, Songwriters Hall of Fame
If you haven’t figured it out by now … every one of them is from Meridian. And Meridian is not unique in our state. Mississippi’s musical legacy is phenomenal.