A POTPOURRI OF POINTS
April 21, 2011 § 2 Comments
Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use. Such is Jernigan v. Young, handed down by the COA on April 19, 2011.
Samuel Jernigan and his wife Mae Bell were married in 1997. Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed. He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve. Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him. There was no writing evidencing the alleged agreement.
In 1998, Mae Bell conveyed the property to her daughter Amy. It is not disclosed in the record whether Samuel was aware of the transaction.
In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences. They proceeded pro se using fill-in-the-blank forms. In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”
Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside. He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated. The case sat idle for seven years until Amy filed for summary judgment. The chancellor granted summary judgment, which the COA affirmed.
Here are the nuggets from Judge Griffis’ opinion:
- “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
- Relief under MRCP 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
- No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences. MCA § 93-5-24(4). In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
- Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
- It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce. St. Germain at 417-418. Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error. Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
- An inter vivos deed of gift need not be supported by separate consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999). “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.” Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
- MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void. The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).
And the most important point of all: You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.
The Better Chancery Practice Blog 
He definately got exactly what he paid for. Fill in the blank forms are bad enough, but what about non-lawyers actually drafting divorce documents? A friend forwarded a Craigslist advertisment to me where a “paralegal” is offering this service now.
http://jackson.craigslist.org/lgs/2338543726.html
Looks like something the Bar might want to check out.
Thanks for the link. Our bar commissioner in this district is on this.
Keep up the good work with your blog.