THE LAW OF INTENDED CONSEQUENCES
October 31, 2011 § Leave a comment
Who owns a joint savings account? If your answer is that each person named on the joint account owns 100% and is entitled to withdraw and spend all of it, step right up here with us other average intellects.
If, on the other hand, your answer was to the effect that “It depends on what the parties intended,” then take your gold star and step over there with all the other geniuses.
Here is a scenario to illustrate:
Marie, Edward, Josie and Bennie are siblings. Together they open two savings accounts and a CD for the benefit of their elderly parents.
Each account requires the signature of two of the four parties to make a withdrawal.
The mother died, and after her death Marie and Edward unilaterally withdrew some of the money and put it in a “safe place” to be used to do some repairs on property owned by the dad in which the four siblings had an ownership interest. The father then died.
It is undisputed that the siblings had agreed when they opened the accounts that, upon death of the parents, any money remining was to be divided equally among all four siblings.
Josie and Bennie took exception to the withdrawal and filed suit in circuit court for charging Marie and Edward with the tort of conversion. Marie and Edward took the position that each sibling possessed an equal ownership interest in the accounts, and that they had legal authority to make the withdrawals. They denied that there was any conversion as a matter of law, because they had absolute authority to withdraw the funds. Josie and Bennie took the position that the withdrawal violated the parties’ agreement, and that the funds were being unlawfully withheld.
The circuit judge granted summary judgment in favor of Josie and Bennie, and Marie and Edward appealed.
In the case of Stevens and Bohannon v. Smith and Bohannon, decided October 4, 2011, by the COA, the court affirmed the circuit court.
The decision recited the familiar rule of joint accounts:
Regarding joint accounts, it is well settled in Mississippi that joint-account holders have given each other absolute authority over an account “and the unconditional power to withdraw all or any part of the account.” Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061, 1066 (¶9) (Miss. Ct. App. 2001) (citing Deposit Guar. Nat’l Bank v. Pete, 583 So. 2d 180, 184 (Miss. 1991)).
Although Marie and Edward had the unqualified right to withdraw the funds, they did not have the right to deprive Josie and Bennie of their right to an equal interest in the funds. The court said at ¶ 12, Citing Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963), that ” … joint accounts are presumed to be vested in the names of the account depositors as equal contributors and owners in the absence of evidence to the contrary; however, intent of the parties is the controlling factor.” And:
The peculiar features of a joint and several bank account make it difficult, if not impossible, in most cases, to determine what portion of the account belongs to each depositor. A long series of deposits which cannot be traced to their source, and a similar series of withdrawals which cannot be traced to their destination, are normally involved. This defect is inherent in the severalty feature of such bank accounts wherein each depositor is allowed to treat joint property as if it were entirely his own. A joint bank account of this kind is generally a creature of contract between parties avowedly indifferent to the exact percentage of ownership between themselves. It is said that the law should take them at their word and give effect to their contract without making detailed evidentiary inquiries to establish factual ownership. The prevailing view seems to be, however, that while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners in the absence of evidence to the contrary, the intention of the parties is the controlling factor, and where a controversy arises as to the ownership thereof evidence is admissible to show the true situation.” [Emphasis in bold added]
Since the undisputed proof in this case was that the parties had agreed to a joint ownership arrangement for the funds remaining after the parents’ death that were not needed for their care, it was conversion for Marie and Edward to deprive Josie and Bennie of their share of the funds.
The decision does not mention the parol evidence rule. It seems to me that there are parol evidence considerations in that the agreement to deposit the money into a joint account is a contract evidenced by the signature card and the bank regulations that are usually printed on it. Doesn’t this case in essence say that the agreement between the parties can be varied by parol evidence even when the agreement is not shown to be ambiguous?
So what are the ramifications of this case for family law practitioners? In my opinion, this rationale opens another line of attack in the situation where one spouse has withdrawn money from a joint account in anticipation of divorce. I say “another line of attack” because claiming the money is subject to equitable distribution is the usual, obvious course. But what if, for instance, it is undisputed that the parties had agreed that the proceeds from sale of husband’s separately-owned horses that were deposited into a joint account were to be used specifically to pay for the college education of his child by a previous marriage instead of being divided? Or what if it had been agreed that the joint income tax refund that was deposited in a joint account was to be used 100% to pay off husband’s credit card debts that had been incurred for the household? In either case where you represented the husband, it would clearly be in his interest to look to the intent of the parties rather than to equitable distribution.
October 28, 2011 § 2 Comments
“Among the San Bushmen of South Africa … the hunt for game with poison-tipped arrows depends on moving rapidly across the veld. … When men become too old to participate in the hunt, they become makers of arrows — and tradition ascribes to the arrow maker the primary credit for the kill. … Similarly, only when women are too old for childbearing are they permitted to become shamanic healers, a translation of the love and care they have given their children to the health of the wider community. In both cases, an appropriately limited effort is recognized as having a profound value.” — Mary Catherine Bateson
“The great thing about getting older is that you don’t lose all the other ages you’ve been.” — Madeleine L’Engle
“When I was young, I was amazed at Plutarch’s statement that the elder Cato began at the age of eighty to learn Greek. I am amazed no longer. Old age is ready to undertake tasks that youth shirked because they would take too long.” — W. Somerset Maugham
October 27, 2011 § Leave a comment
People are often unreasonable, irrational, and self-centered. Forgive them anyway.
If you are kind, people may accuse you of selfish, ulterior motives. Be kind anyway.
If you are successful, you will win some unfaithful friends and some genuine enemies. Succeed anyway.
If you are honest and sincere people may deceive you. Be honest and sincere anyway.
What you spend years creating, others could destroy overnight. Create anyway.
If you find serenity and happiness, some may be jealous. Be happy anyway.
The good you do today, will often be forgotten. Do good anyway.
Give the best you have, and it will never be enough. Give your best anyway.
In the final analysis, it is between you and God. It was never between you and them anyway.
Credited to various sources, but it doesn’t matter who came up with it; it’s a way to live as a lawyer.
WHAT PRICE JUSTICE?
October 26, 2011 § 2 Comments
There were lawyers ‘way back in 1960. You youngsters will have to take my word for that. Heck, I will even have to take my word for that, because I was a mere 11 years old at the time.
Those 1960’s lawyers had the ingenious idea that bar-mandated fee schedules would accomplish some good things, such as providing some protection for clients against unconscionable fees, giving lawyers a framework for determining what would be reasonable, and would give the courts a measuring device.
I remember when I was admitted to the Mississippi bar, all of us received a navy binder with ethical rules, useful telephone numbers and mailing addresses, and fee schedules. Later, as a young lawyer in Memphis in 1974, I received my copy of the Memphis and Shelby County bar’s fee schedule.
We lawyers all regarded fee schedules as a benign thing.
Then the US Supreme Court saw a bugbear lurking among that legal finery, and declared fee schedules unacceptable. Legal fees were free to float through the ceiling, and, indeed, the roof; clients be danged. Freed of gravity, legal fees have done what all things do when unfettered by an earthward pull.
Meridian lawyer Dan Self brought me a fascinating document published May 2, 1960, by the Mississippi State Bar. It’s entitled Fee Computation and Law Office Management. It offers a look at how law practice has changed, as well as how it hasn’t changed, in the intervening 51 years. I won’t bore you with the rusty nuts and bolts of law office management, but I am sure you will find some of the fee schedule entertaining. Consider:
- Advice and consultation by telephone or in office … $5.00
- Advice and consultation out of lawyer’s office … $10.00
- Preparation of Articles of Partnership with capital less than $5,000 … $150.00
- Incorporation (obtaining charter, drafting by-laws, conducting first meeting of stockholders and directors and preparing minutes thereof, and reporting organization to the Secretary of State) … $250.00
- Will or codicil for estate with value less than $2,500 … $15.00
- Will or codicil for estate with value greater than $2,500 … $25.00
- Certficate of title for 32-year chain of title … $50
- Complaint for divorce, custody or separate maintenance, uncontested … $100.00
- Complaint for divorce, custody or separate maintenance, contested … $150.00, plus time for trial
- Chancery court trials: Preparation of pleadings … $100; Court appearances per day … $150
I can testify that these fees were aspirational by the time I spent any time in Mississippi court rooms. Around 1981, I tried a three-day trial before then-Chancellor Howard Pigford. Since I prevailed, he awarded my client a “reasonable attorney’s fee” in the princely sum of $150. That was $50 a day for some heavy lifting.
UCCR 8.06 ON STEROIDS
October 25, 2011 § 7 Comments
Unless you’ve been practicing law under a rock for the past umpteen years, you are surely aware of the requirements of UCCR 8.06. That’s the rule that mandates filing each party’s name address and telephone number with the chancery clerk, with service on the other party, in every action involving custody of children, and within five days of any change.
Did you know that there is a statutory counterpart to UCCR 8.06 that requires even more detailed information in paternity and child support cases?
MCA § 93-11-65 (5) now provides that:
Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and the state registry, information on that party’s location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer. This information shall be required on entry of an order or within five (5) days of a change of address.
This provision is not limited to DHS actions for support. In my opinion, it applies in all cases where there is a provision for child support, including irreconcilable differences divorces. You should see to it that this is addressed in your property settlement agreements and judgments.
ONE TOKE OVER THE LINE
October 24, 2011 § 5 Comments
MCA § 93-5-1 lists the statutory grounds for divorce. Ground “Sixth” is “Habitual and excessive use of opium, morphine or other like drug.”
The somewhat archaic language of the statute has given rise to some obvious questions, including:
- What frequency of drug use is required to be considered habitual?
- When is use of opium, morphine and “other like drugs” excessive (and, for that matter, when is it not excessive?)
- What drugs are included in the definition of “other like drugs?”
Perhaps the leading case to address these questions has been Ladner v. Ladner, 436 So.2d 1366 (Miss. 1983), in which the MSSC held that the husband’s daily use of drugs was so excessive that he had lost the ability to control his use, and the prescription drugs that he used and abused had an effect on him similar to that which would have been produced by opium or morphine, including adverse effects on his cognitive abilities, social and family relationships, and work.
In the case of Carambat v. Carambat, decided by the MSSC on October 20, 2011, the court held that marijuana is a drug included in the definition of “opium, morphine and other like drugs,” and affirmed the grant of a divorce on the ground. The court spelled out that the ground requires that the plaintiff prove the spouse’s drug use was: (a) habitual and frequent; (b) excessive and uncontrollable; and (c) that it involved opium, morphine, or drugs with a similar effect as opium or morphine. Habitual use is proved with evidence that the spouse customarily and frequently used drugs. Excessive use is proven by showing that the offending spouse abused drugs. In determining whether a drug fits the definition of “other like drug,” the trial court should consider the using spouse’s ability or inability to support his wife and family, or to properly attend to business, as well as the guilty spouse’s ability or incapacity to perform other marital duties, or his causing the marital relationship to be repugnant to the innocent spouse.
The court found that evidence in the record did support the chancellor’s findings that the husband’s use of marijuana was habitual and excessive, and that it did have an effect similar to opium and morphine in that it did affect his ability to work and support the family, his family relationships and the family’s financial stability, rendering the marital relationship repugnant to the wife.
At trial, the husband had attempted to argue that the wife knew about his marijuana use before the marriage, and that she condoned his use during the marriage, but the chancelor refused to entertain his objections. On appeal, the MSSC upheld the chancellor, noting that MRCP 8 requires that an affirmative defenses such as condonation must be specifically pled as required, and if not pled is waived. The husband had failed to plead condonation, and the wife timely objected when he attempted to interpose the defense. The MSSC held that the defense was waived.
The husband had also attempted to raise the defense of recrimination on appeal, claiming that the wife had committed adultery. He had not, however, filed a counterclaim or otherwise raised the issue in any pleading, resulting in the same result as that for his failed condonation claim. The court also noted that MCA § 93-5-2 does not mandate denial of a divorce when there is evidence of recrimination.
In a cogent dissent, Justice Carlson takes the position that Mississippi is the first state to hold that marijuana use is a ground for divorce. He also opines that the court’s ruling will open the floodgates to many more divorces. His dissent is worth a read for his argument highlighting the differences between opiates and marijuana, and their statutory treatment in our law. Justices Dickinson and Kitchens joined Carlson’s dissent.
A few points I glean from this case:
- The court has fairly well spelled out the abc’s of what it will take to get a divorce on this ground. If your case fits the recipe, you will likely have some success.
- The key to whether the drug in your case will fit the definition is what effect it has on the life of the using party and its effect on the other spouse and the marriage.
- I agree with Justice Carlson that many cases that formerly were purely habitual cruel and inhuman treatment (HCIT) cases with marijuana use are now candidates for this ground, which could spell an increase in the number of cases. BUT, keep in mind that the burden of proof for ground the Sixth is clear and convincing evidence, which is a considerably heavier burden than the preponderance required for HCIT.
- A side effect of this decision will be to remove any doubt that marijuana use can be included in the discussion of the kind of drugs that can trigger a divorce. Again, the turning point will be the effect on the other spouse and the marriage itself because of the offending spouse’s conduct. What about “synthetic marijuana’ and marijuana substitutes?
- If you expect to raise condonation or recrimination as defense, whether at trial or on appeal, you had better plead them as required in MRCP 8(c).
October 23, 2011 § 3 Comments
You might assume from the fact that I haven’t posted a book review this year that I have not been reading, but, as George Carlin used to say, “Au contraire, mon frère.” Actually, I am a chronic reader who always has a book or two going. Here are capsule reports on some books I have read in 2011 that are worth mentioning.
A Feast of Snakes, by Harry Crews. A wacky offering from Georgia native Crews, whose boozy, trailer-park, washed-up-high-school-football-hero characters evoke southern trashiana. In this story, a rattlesnake hunt festival culminates in violence, mutilation, and sex, strangely told in a style that vacillates from savage to hilarious to ironic.
What Jesus Meant, by Garry Wills. In an era when so many politicians try to co-opt Jesus’ message to validate their own positions, it’s refreshing to read the real meaning behind the words. Wills calls upon his doctorate in the classics and Greek in this book to analyze the meaning of many passages attributed to Jesus in the New Testament. It’s an eye-opening and sometimes surprising revelation. Thanks to Stewart Parrish for recommending this.
Freedom Summer, by Bruce Watson. The blisteringly hot summer of 1964 was not only the most heated of the Civil Rights Movement, it was then that Mississippi was targeted for massive social change by several civil rights groups for black voter registration drives and Freedom Schools. This book describes the cultural milieu of Mississippi and the South at the time, the volunteers, the violence and even death that met them, and the legacy of the era. Freedom Summer touched many parts of Mississippi, and Meridian played an important part, both positively and ignominiously.
An American Insurrection, by William Doyle. Riveting, hour-by-hour account of the turmoil surrounding the admission of James Meredith to the University of Mississippi in 1962. I had previously reviewed Frank Lambert’s Battle of Ole Miss here, and it is certainly worth a read, but Doyle’s book is much more detailed, and unfolds like a suspense novel.
Crooked Letter, Crooked Letter, by Tom Franklin. This is a fine little piece of fiction set in a rural Mississippi village. The lives of white Larry Ott and black Silas Jones unexpectedly intersect as a series of startling events unleashes an avalanche of revelations that change the past, present and future of everyone involved.
Faulkner’s County, by Don H. Doyle. This book is nominally the history of Lafayette County and Oxford, and by extension Faulner’s Yoknapatawpha County and its seat of Jefferson. The expected references to Faulkner’s works are here, pinpointing fictional locales and events in real geography. But the book is so much more. Set in the familiar hills and gullies of Lafayette County, we learn the stories of the earliest settlers and the Chickasaw natives, the depredations of the Civil War, the railroad, and the gradual rise to civilization of the rough hill-countrymen. This is not only the story of Lafayette County, but also the story of the north Mississippi hill country from the early Chickasaw days to the early days of the twentieth century.
Moral Combat, by Michael Burleigh. Most histories of World War II focus on the strategies, tactics, politics and logistics of the struggle. This book takes a close look at the policy decisions of the leaders and their effects on combatants and non-combatants. As one would expect, the atrocities committed against the Jews are studied, but so are the gratuitous murders committed in the guise of combat, the ethnic cleansing in the USSR, political fratricide, and strategic decisions that cost thousands of lives. This is not light reading, but it’s a thoughful approach to understanding the difficult moral issues that arise in war.
Remembering Slavery, ed. by Ira Berlin, Marc Favreau and Steven F. Miller. Compiled from actual interviews with former slaves, this book describes what it was like to be a slave, their work, the people who subjugated them, family life, slave culture, and life after emancipation.
The Clearing, by Tim Gautreaux. This novel tells the story of a dysfunctional northeastern family who take control of a logging operation in the Atchafalaya swamp of south Louisiana in the 1920’s. When long-suppressed resentments surface, lives are torn apart. Tim Gautreaux is known mostly as a short-story writer, and this is his first novel. Some readers might find that this work is more elongated short story than novel, but it is well-written and worth your time.
The Land Where the Blues Began, by Alan Lomax. A big part of the story of Mississippi is the story of the blues and blues musicians. Alan Lomax tells the story of the Mississippi Delta, how it gave birth to the blues, and how the desperate poverty and oppression of blacks shaped their music.
Figures of Speech, by William Bennett Turner. Here are the heroes and villians of the First Amendment, men and women whose legal struggles over free speech issues shaped the law of the land.
Breach of Peace, by Eric Etheridge. Mr. Etheridge mined a wealth of information compiled by Mississippi’s Sovereignty Commission to compile this fascinating portrait of the Freedom Riders who came in waves to Mississippi in 1961 from across the nation in an attempt to break the iron clasp of the state’s apartheid laws. Using mugshots and documentary material, supplemented with interviews and updated photos of the participants, Etheridge masterfully tells their story.
Reading now …
My Reading Life, by Pat Conroy.
The Summer of 1787, by David O. Stewart.
The Portable Faulkner, ed. by Malcolm Cowley. A re-read.
Profiles in Courage, by John F. Kennedy. Another re-read.
Soon off the shelf …
The Eyes of Willie McGee, by Alex Heard.
The Wandering Falcon, by Jamal Ahmad.
World War Z, by Max Brooks. A gift from my old friend, Carol.
Hope and History, by Vincent Harding. A gift from my new friend, Mark Levy.
The Bible Salesman, by Clyde Edgerton.
What It’s Like to Go to War, by Karl Marlantes.
RIP CHAMP GIPSON
October 22, 2011 § Leave a comment
RIP Meridian attorney Champ Gipson. September 23, 1921 – October 20, 2011.
MORE HISTORY OF THE LAUDERDALE COUNTY COURT HOUSE
October 21, 2011 § Leave a comment
I posted here about the evolution of the Lauderdale County Court House, which included various historical photos of the building.
Below is a photo of Meridian looking east-southeast, obviously from a vantage point in the Threefoot Building, Meridian’s 16-story Art Deco icon, which had been built in 1929. The Lauderdale County Court House is the domed, Beaux-Arts-style building in the right center. The photo had to have been taken before 1939, because that is the year when the WPA work removed the dome, replaced it with a squarish jail, and transformed the façade from Beaux Arts to Art Deco. The photo, then, had to have been taken between 1929 and 1939.
If you compare this photo to some in the prior post, you will notice that the statues that originally adorned the court house roof above the west-facing columned entrance are removed. The Confederate memorial has been installed on the northwest corner of the lawn.
In other details of the photo, look to the right of the court house, east of and about a block from the Lamar Hotel building, and you will see the old jail that predated the one installed atop the court house during the WPA renovation.
You will also notice the residential neighborhoods to the east that extend in this photo within a block of the court building. I imagine some of the more everyday lawyers strolled to work from home in those neighborhoods back when this photo was taken. The more prosperous barristers lived in the mansions along Eighth Street, or around Highland Park, or in the ample residences on Twenth-Third and Twenty-Fourth Avenues.
Here is a post-card photo of the jail building. Notice the Soulé foundry building to the left (east) of the jail. Its location will give you a clue as to the site of the old jail.
And below is a photo of the Lamar Hotel looking southeast, with the jail to the left, or east. Notice the caption, “Lamar Hotel with old County Jail in background with gallows in tower.” Before the state employed a travelling electric chair, executions for capital offenses were carried out in the various counties by hanging. Meridian, in forward-looking fashion, had a permanent gallows for the purpose, rather than having to go to the expense of constructing an ad-hoc apparatus as the need arose. Even back in those days, Lauderdale County had innovative leadership.
Q & A WITH JUDGE GRANT
October 20, 2011 § 1 Comment
Chancellor John Grant is one of two chancery judges serving in the Twentieth District (Rankin County). Here is a Q & A he provided for 12 CCDM:
Q: Tell us some of your personal preferences that lawyers from outside your district need to know before they come before you.
A: Lawyers should be properly attired, punctual and bring with them a working knowledge of the law and procedure with regard to the issue before the court.
Q: What are the three attributes that you would consider to set the good lawyers apart from the bad ones?
A: Good lawyers are always well organized and prepared.
Good lawyers are dignified and extend civility to fellow members of the bar and to the court.
Good lawyers are expedient in their presentations. (They don’t have to ask the same question three times. They make their point and move on.)
Q: What is the main thing lawyers should know to avoid doing in your court room during a trial?
A: They should avoid being disruptive or discourteous, whether it be in the questioning of a witness or in making argument before the court.
Q: What part of your job do you enjoy the most?
A: I probably most enjoy being able to participate in the adoption of a child by worthy parents. At other times, it is knowing that an important and difficult decision that I had to make was the right one.
Q: What part of your job do you enjoy the least?
A: Having to remove children from a parent who that child loves first comes to mind. Having to sanction a member of the bar for misbehavior is another in the “least” category.
Q: What is your pet peeve as a judge?
A: A lawyer will act with restraint and will not be allowed to transition a court case into a dramatic performance for the benefit of onlookers or client.
Q: Tell us a funny story about something that happened in your court room.
A: We had a very contentious domestic case one day involving a female pro se litigant and her ex-husband. Prior to the beginning of trial she could only write down her request for a continuance because she could not speak due to some type of throat condition. She professed an inability to properly present her case due to this malady. Her request was denied.
Within 5 minutes of beginning trial the lady’s voice mysteriously returned.
Epilogue: She lost the case.
Q: Cell phone ringing during a trial: death penalty, stern look, dismay, or no reaction?
A: Stern look only. (After all it has happened to me – accidentally, of course!)
Q: Lawyer tells you, “That’s not how we do it back in ________ County.” Discuss.
A: This comes up from time to time and I usually respond using the great Judge Cortwright’s classic line, “Mr. Jones, are you in Hinds County?”
Q: Who do you model yourself after as a judge?
A: I hope I have some of the qualities of three of my favorite mentors: Ed Cortwright, Sebe Dale and Mike Carr.
Q: Who do you consider to be the best chancellor you ever appeared before, and what set that chancellor apart?
A: Probably Judge Ed Cortwright. He possesses great character and integrity, much like other fine judges I have known. What set him apart, however, was his brilliant legal mind.
Q: Share your innermost thoughts and feelings about MRCP 81.
A: Many have expressed hate for this rule. However, once one is around it constantly for an extended period of time and gets to really understand its application, it reveals itself as probably one of the best protectors of due process for litigants. After all, what’s not to like about a type of process that informs a litigant of when and where to appear for trial?
Q: What do you do to try and get control of your probate docket?
A: We require annual accountings, the timeliness of which are monitored by computer program. We also have certain days allocated during the year to deal with delinquent accountings and other fiduciary related matters.
Q: Should chancery and circuit court systems be merged?
Q: There are 19 appellate judges. What would be the ideal number of former chancellors serving on the two appellate courts?
A: About 19.
Q: Tell us your favorite quote.
A: ”When I was 14, my old man was so stupid I could hardly stand to have him around the house. However, when I became 21, I was astonished at what my father had learned in 7 short years.” (sic) Abraham Lincoln
Q: Tell us your favorite court room movie.
A: My Cousin Vinnie (“Mr. Gambini, are you on drugs?”)