PARTITION: BY SALE OR IN KIND?
February 29, 2012 § 5 Comments
Partition is the legal mechanism in Mississippi for dividing joint owners’ interests in real property when they can not otherwise agree to do so. The partition statute is MCA § 11-21-1, et seq.
It seems from where I sit that almost all partition cases come before the court with near-unanimous agreement among the parties that, if the property must be divided, sale will be the most advantageous method.
Even in contested cases, the prevailing view appears to be that the property should be divided by sale. That is not the law in Mississippi, however. Partition in kind is the favored method of division.
In the case of Fuller v. Chimento, 824 So.2d 599, 601-2 (Miss. 2002), the Mississippi Supreme Court laid out the law on the subject:
A partition in kind is the preferred method of partition of property under Mississippi law. Overstreet v. Overstreet, 692 So.2d 88, 91 (Miss.1997); Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992); Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992); Monaghan v. Wagner, 487 So.2d 815, 820 (Miss.1986); Bailey v. Vaughn, 375 So.2d 1054, 1057 (Miss.1979); Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919, 926 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852, 854 (1961); Blake v. St. Catherine Gravel Co., 218 Miss. 713, 67 So.2d 712, 714 (1953); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 594 (1924); Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 156 (1911); Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539 (1908). See also 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 60:99, at 56 (2001).
The propriety of a partition sale or partition in kind is determined on a case-by-case basis. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 197 (1944). To justify a partition by sale, the party seeking the sale must bring his case squarely within Miss. Code Ann. § 11-21-11 (Supp.2001) which states in pertinent part that
If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.
The use of the conjunction “or” in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) “better promote the interest of all parties than a partition in kind” or (2) “if the court be satisfied that an equal division [of the land] cannot be made.” Id. See Blair, 601 So.2d at 850. See also Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908, 911 (1949); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898). “Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale.” Blair, 601 So.2d at 850. Furthermore, a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met. Shorter, 54 So. at 156.
The joint owner seeking a partition sale has the burden of proving that the land is not susceptible of partition in kind and that a sale is the only feasible method of division. Overstreet, 692 So.2d at 90-91; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 448 (1931).
It is permissible for the court to order partition by sale as to one parcel, and partition in kind as to another. The court’s action has to be supported by the requisite proof. I urge you to read the cases to get a feel for exactly what it is you need to prove.
When you have a partition suit and your client or the other party is objecting to a division in kind, you should expect your position to fail if you do not provide adequate evidence. If you want a sale, you must put on proof how sale will better promote the interests of the parties or that the property can not be equally divided in kind. The party wanting a sale has the burden of proof. If the party wanting a sale has met his burden of proof and you want division in kind, you must put on proof contradicting that of the party wanting a sale.
WRITING YOUR WAY TO A WIN
February 28, 2012 § 12 Comments
Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?
There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.
It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).
Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.
I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.
The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:
In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.
The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.
My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.
So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.
A FEW POINTERS ON EXPERTS
February 27, 2012 § 3 Comments
In a few trials lately, I’ve been surprised at the relatively relaxed approach lawyers have taken to identifying the expert witness in discovery, responding to the standard expert witness interrogatories, and even qualifying the expert to testify at trial. If you get lazy with how you present your expert you are inviting error into the record.
Here are a few reminders:
- If you are asked in discovery to identify your expert, UCCR 1.10 requires that you must do so not less than 60 days in advance of trial, or you will not be allowed to call the expert.
- If you are asked in discovery to provide the information set out in MRCP 26(b)(4)(A)(i) as to the subject matter, ths substance of facts and opinions, and a summary of the grounds for opinions, you must provide a substantial enough answer to give the other side a reasonable idea of what the expert’s opinions will be and what it is that the expert uses as a basis for the opinion. If you do not timely provide that information, the testimony may be excluded, or you may be severely limited by a skimpy answer. This is important, and may be crucial to your case. If you don’t have a system in place to remind you to update and supplement your discovery well in advance of trial, you’d better come up with one for your survival’s sake.
- At trial, you must qualify the witness. Here is the process, in a nutshell:
- Identify the witness.
- Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
- Tender the witness as an expert to the court, which will allow the other side to voir dire the witness on qualifications. Remember that you must tender the witness as an expert in a specific field. For example: “I tender the witness as an expert in the field of child psychology and behavioral disorders,” or ” … in the field of surveying,” or ” … in the field of counseling with an emphasis on identifying and treating victims of child abuse and domestic violence,” etc., etc., etc.
- Address any objections to qualifications.
- Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
- Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
- Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
- Develop the expert opinion.
- You can find some more detailed information about the process at this earlier post.
It’s your case. Try it as you like, but remember that no matter how satisfactory the outcome at the trial level, it’s only as good in the long run as the record you made.
February 24, 2012 § 5 Comments
- A bill pending in the Mississippi legislature may have far-reaching consequences for the people of Mississippi who need access to courts, as well as for the legal profession. It’s a bill that describes itself as “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action …” What that means for chancery court, I believe, is that if a party in good faith seeks modification of custody to rescue a child from an abusive situation, and that party loses, he or she will have to pay the other side’s attorney’s fees and expense. You can imagine what effect that law would have on the willingness of people to risk bringing an action to have that addressed. Philip Thomas has a post here on the subject, with a link to the bill itself, and another post here, and here. This is really important to your clients and the legal profession. You need to educate yourself about this and talk with your legislator.
- The formidable Garry Wills, a Catholic himself, skewers the church’s position on contraception and health insurance in this acerbic article, Contraception’s Con Men, in the New York Review.
- So, which is the best language to learn? Robert Lane Greene opines in More Intelligent Life. Hint: Il n’est pas le Mandarin des Chinois.
- You can read the entire publication, William Faulkner and the Tangible Past: The Architecture of Yoknapatawpha, by Thomas S. Hines, online, complete with illustrations.
- The classic American dream: a home and a college education. Now that the housing dream has faded, is higher education next? The Christian Science Monitor thinks so.
- Nobel-prize-winning economist Joseph Stiglitz has a 4-point plan for reducing the deficit and restructuring the US economy.
YET MORE SIGNS OF THE IMPENDING APOCALYPSE
February 23, 2012 § 1 Comment
ALIMONY IS NOT FOR EQUALIZING THE DIVISION
February 22, 2012 § Leave a comment
What is the proper role of alimony vis a vis equitable distribution? In Williamson v. Williamson, decided by the COA on January 10, 2012, Judge Carlton’s opinion stated:
¶21. The record reflects that in equitably dividing the marital property, the chancellor erroneously applied the Armstrong factors by awarding Mary alimony in order to create equalization of the parties’ incomes. The chancellor then ordered Will to pay Mary $594 per month to be applied toward the mortgage on the marital home; and, in addition to that amount, the chancellor awarded Mary $200 per month in periodic alimony, for a total of $794, or approximately $800, until the former home sold. [Footnote omitted] As evidenced by the chancellor’s findings, the chancellor accomplished the ordered equitable division of the marital property by aid of an award of periodic alimony in favor of Mary in order to make the parties’ financial situations “equalized.” The record shows, as set forth in the excerpts herein, that the chancellor had not completed an equitable division of the marital property prior to considering alimony. In accordance with precedent, the equitable division of the marital property must be completed prior to determining if either spouse suffers a deficit in the division of the marital estate warranting an award of alimony. The record in this case shows, however, that the chancellor used alimony to equalize the parties’ future incomes instead of awarding alimony based upon need existing after completion of an equitable division of the marital property.
¶22. Mississippi now embraces the process of equitable division of the marital property. In applying the “equitable” division of the marital property in accordance with the Ferguson factors, alimony fails to serve as the primary method to equalize property division. See Lowrey, 25 So. 3d at 292 (¶44) (“[A]limony has become a secondary remedy to property division . . . . ‘One of the goals of adopting equitable distribution was to alleviate the need for alimony.’”). Alimony, instead, assists in the event the chancellor determines that a need exists by a spouse after the completion of the equitable division of the marital property. See id. at 293 (¶44) (“If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.”); George v. George, 22 So. 3d 424, 428 (¶7) (Miss. Ct. App. 2009) (“[A]n award of periodic alimony is based upon need.”).
The proper procedure follows this sequence:
- Determine which assets are marital and which are non-marital;
- Adjudicate the values of both marital and non-marital assets;
- Apply the Ferguson factors to the proof in the record to determine whether there should be an equitable division of the marital estate, and, if so, how it should be accomplished;
- If the equitable division of the marital estate, considered with each party’s non-marital property, leaves a deficit for one party, then the court should analyze the evidence in light of the Armstrong factors to determine whether alimony should be awarded.
From a pratice standpoint, then, here is what you need to give the chancellor so that she or he can do the job:
- An itemization of all assets, showing which your client claims to be marital and which your client claims to be non-marital. The best way to present this itemization is through lists introduced into evidence, rather than just a narration by your client. Have your client testify as to her basis for putting each asset into either category.
- Assign values to each asset. In advance of trial have your client assign values to each asset. Real property, heavy equipment, leaseholds, buildings, fine art and jewelry, business operations and interests, and other assets other than automobiles and ordinary personal property should have values established by appraisals. Again, this should be done by lists and documentation as much as possible, although experts may be needed as to some items.
- Offer proof as to each Ferguson factor. Have a copy of the factors to use as an outline as you develop testimony at trial. You might also want to look at the Cheatham factors for lump-sum alimony.
- Whether your client is trying to get alimony or trying to resist it, put on proof as to the Armstrong factors. Have a copy of the factors to use as an outline as you develop testimony at trial.
In my opinion, one of the chief causes of failure on appeal is that the lawyers do an inadequate job of making a record that the chancellor can use in making a decision. This forces the trial judge to have to patch something together in an attempt to cover everything, and the result is a flaw that the COA will find reversible. Make your record as airtight as the truth allows.
DID COLLEGE SUPPORT JUST GET BIGGER?
February 21, 2012 § 2 Comments
Teresa and Charles Zweber got an irreconcilable differences divorce by consent in 2006. A special master heard their case, and the chancellor entered a judgment of divorce. Charles got custody of the parties’ daughter, Lindsey, and Teresa was awarded custody of the son, Daniel. Paragraph 9 of the judgment addressed the parties’ college support obligation. It reads in part:
“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.”
When Lindsey reached college age, she opted to attend Delta State University (DSU) and enrolled in that school’s commercial aviation program. The degree curriculum requires that the student take flight-training courses, most of which are at the student’s own expense. The expense is considerable: the university’s own published figures state that students can expect to spend around $55,000 for all of the required flight-training courses. Of course, as with all college students, Lindsey spent money in addition for books, tuition, pencils, paper, gasoline for her car, pizzas, makeup, hamburgers, hairdos, laptops and related paraphernalia, etc., etc., etc.
Charles sent Teresa a bill for her share of Lindsey’s college expenses. Included were the usual dorm and meal plan expenses, along with the charges for the flying instructions. Teresa deducted the flight instruction costs and began remitting a monthly payment to Charles for her share.
At trial the chancellor found that the flight-training expenses were necessary for Lindsey’s college degree, and ordered Teresa to pay up. Teresa appealed, claiming that the chancellor was in error due to the specific language of the college expense provision of the divorce judgment, which Teresa read to limit each party’s liability.
In a decision rendered February 14, 2012, in Zweber v. Zweber, Judge Griffis, writing for the majority of the COA, pointed out that the requirement of flying lessons and their cost were spelled out in the DSU catalog, and that they were required to complete the degree. In a masterful understatement, Judge Griffis observed at ¶ 17 that “Indeed, it does make sense that a student would have to learn to fly before he or she could graduate from a commercial aviation program.”
The opinion goes on to state:
In Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991), the supreme court held: “Though college expenses are not technically ‘child support,’ a parent may be ordered by the court to pay them. A parent may also be ordered to pay some portion of the resulting expenses of college, in addition just to tuition.” (Citing Wray v. Langston, 380 So. 2d 1262, 1264 (Miss. 1980)). Today, the cost of a college education is not simply limited to meals, tuition, books, and room. Instead, all related fees and expenses of the child’s college education must be considered. This includes the direct expenses charged by the college or university (i.e., tuition, on-campus housing, fees, books, or other related expenses), as well as indirect expenses that are necessary for the child to live as a college student (i.e., offcampus housing, meals, transportation, insurance, computers, clothing, and personal expenses). Indeed, all of these costs are required for the child to complete successfully his or her college education. We recognize that not every parent can afford to pay these costs. The law provides that the chancellor, not this Court, is in the best position to make this determination. Based on our de novo review, we determine that the chancellor’s decision on this issue was correct. We therefore affirm the chancellor’s judgment.
I may be wrong, but I don’t recall the appellate courts setting out a more expansive definition of college education expenses before now.
There are implications here for your PSA’s. In essence, what the COA is telling you is that, unless you specifically carve categories of expenses out of the definition of college support, your client may face some additional expenses that never occurred to you in drafting it. That could be unpleasant to have to explain to the client after the expenses were incurred.
What about where the non-custodial parent is paying college education support and child support? It would be prudent, for example, to spell out that the child support will go toward your client’s share of “Junior’s transportation, off-campus housing and all other living expenses while at college,” or some such language that covers your situation.
In any case, you should specifically carve out and allocate those living expenses, such as “Husband will be responsible to pay the cost of Junior’s automobile, including maintenance not to exceed $1,000 per year, and gasoline and oil not to sxceed $200 a month, and wife shall be responsible to pay the off-campus apartment rent and utilities,” or something like that. If you don’t, the sky’s the limit.
There are a couple of other aspects of this case that deserve your attention. I recommend that you read it. After you read it, I urge you to consider the language in your PSA’s addressing that college support obligation and whether you are adequately protecting the interests of your client.
February 20, 2012 § Leave a comment
February 17, 2012 § 2 Comments
“This is what you shall do: love the earth and the sun, and animals; despise riches; give alms to everyone that asks; stand up for the stupid and crazy; devote your income and labor to others; hate tyrants; argue not concerning God; have patience and indulgence towards the people; take off your hat to nothing known or unknown, or to any man or number of men; go freely with the powerful uneducated persons, and with the young, and mothers, of families; read these leaves in the open air every season of every year of your life; re-examine all you have been told at school or church, or in any books; and dismiss whatever insults your soul.” — Walt Whitman
“Do your little bit of good where you are. It’s those little bits of good put together that overwhelm the world.” — Bishop Desmond Tutu
“Preach the gospel always, and if necessary use words.” — Attributed to St. Francis of Assisi
THE BOOMERANG STRIKES HOME
February 16, 2012 § Leave a comment
Still more actual courtroom proceedings collected from hither and yon over the years …
Ask a Stupid Question …
Q: Sir, it says on your jury questionnaire that you are retired. What do you do in your spare time?
A: I smoke pot.
Q: Can you tell me about your job?
A: Very boring.
Q: More boring than this voir dire proceeding?
A: Oh, no. Not this boring.
Plaintiff’s lawyer: This case involves an automobile accident in which my client’s car was struck and he was severely injured. If there is anyone here who does not have a valid driver’s license, would you please raise your hand?
[At which the jury panel and courtroom in general erupt in laughter. Counsel for plaintiff wheels around to see that his client is the only person in the courtroom with a hand raised.]
Defense Lawyer: Now, about the motorcycle accident you were in, did you suffer any injuries?
A: Yes, a broken neck, leg, and arms, abrasions all over.
Defense Lawyer: Just answer yes or no, please. Did your injuries cause you any lingering problems?
A: Yes. Arthritis, daily pain. Pain all the time. Can’t sleep for the pain. Throbbing in my head. Walk with a limp. Hurt so much I can’t get comfortable, whether I sit, stand or lie down. Ruined my sex life. Don’t enjoy doing nothing anymore. I used to hunt and fish, but I can’t no more. Can’t even go to the movies. Sometimes I just cry from hurting so bad. I’m in pain right this minute.
Defense Lawyer: [Sarcastically] Thank you very much for being so forthcoming, sir.
A: Just trying to be honest.
Q: What would you decide if you were in the jury room deliberating and you thought that the defendant was innocent?
A: Oh, about two years.
Atty: Objection, Judge, this is just an attempt to make me look like a fool by going into this.
Court: Is that the only ground for your objection?
Atty: Yes, sir.
Gathering Nuts from the Family Tree
Q: Ma’am, please tell the court how your first marriage was terminated.
A: By death.
Q: And whose death was that?
Q: Please tell the court how big your work shed is at the former marital residence.
A: I would say about ‘yay wide and …
Q: If you can, Mr. Jones, please give the measurements for the record.
A: In meters or feet?
A: I have no idea.
Q: Now, ma’am, you said that your husband called you a whore …
A: Absolutely not! He would never call me a whore.
Q: I wrote in my notes that you said he had called you that. Did I write that down wrong?
A: You must have, because he never called me that.
Q: So what was it that he called you?
A: Slut. He called me a slut all the time, but he never called me a whore. He just was not that kind of person.
[This is actually from a Jan Karon novel, but I couldn’t resist including it …]
Q: So, you have six children?
A: Yes, six. Three sets of twins.
Q: My, my. Three sets of twins! So you had twins every time?
A: Oh, heavens no! There was lots of times when we didn’t get nothing.