The Better Chancery Practice Blog

The court ordered the opposing party to convey her interest in the homestead to your client, but it’s been a month and you still don’t have the executed deed.  Now your client is calling about the riding lawn mower and big-screen tv he was supposed to get.  His ex claims she doesn’t know anything about them, but he sees them at her place every time he goes to pick up the children for visitation.

The attorney on the other side has given up in exasperation.  She is not having any success in getting her client to cooperate, and she asks you to quit calling her; she considers her representation at an end.

What to do? 

Of course, you can file a contempt action, but there are a couple of other avenues. 

Rule 70(a), MRCP, provides that you can ask the court to appoint some other person, the Chancery Clerk for example, to execute and deliver that deed.  And any cost of getting it done is at the cost of the recalcitrant party.  The resulting deed with the court’s order will have “like effect as if done by the party.” 

Better yet, next time get the court to include language in the judgment divesting title from the other party and into your client, as provided in Rule 70(b), MRCP.  That would eliminate the need to get a deed signed, and, after all, the purpose and effect of the deed is to divest title from the other party into your client.  The rule says that “such judgment has the effect of a conveyance executed in due form of law.”

As for the riding lawn mower and tv, Rule 70(c), MRCP may help you out.  It states that a certified copy of the judgment or court order shall be sufficient authprity for the sheriff in the county where the property is located to seize it and deliver it to your client.  Only problem here is that most attorneys do not put enough information into the record for a sheriff, much less a judge, to determine whether the riding lawn mower and tv your client says he is to seize are really the ones subject to being seized.  What is the sheriff to do when the ex-wife claims that this riding lawn mower is her separate property purchased since the separation, and that she does not know where the marital mower is?  Does the sheriff seize it and hope that she is lying or that his liability insurance will pay any damages?  Or does he hand your client back his papers, shrug his shoulders, and return to his patrol car for the next job at hand?  I would choose the latter, if I were the sheriff.  Best practice is to be sure there is enough information, such as make, model, color, serial number and any other identifying information you can get in the record and the judgment to back up your client’s claim to possession.

Tagged: enforcing judgments, execution of judgment, MRCP Rule 70