September 14, 2012 § Leave a comment


September 13, 2012 § 2 Comments

This is the ninth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.


Understand the theory of your case, and be able to communicate it to the judge.

Most chancery matters are straightforward, and the issues are fairly easily framed. A divorce on the ground of habitual cruel and inhuman treatment, for instance, requires certain elements to be proven, as does equitable distribution or alimony. Modification of child custody has its own framework of proof.

But when you stray into unfamiliar areas, you need to be able to explain to the judge where you are going and why, and what your authority is on which you rely. A few examples:

  • If you are defending on the basis that the court lacks jurisdiction because of the UCCJEA, or because of forum non conveniens, make that clear in your pleadings, and have chapter and statutory verse ready to cite, along with a case or 2 that supports your position.
  • If you are pushing a novel theory of law, can you distinguish the cases against you, and can you cite some persuasive authority to get the judge thinking your way?

Don’t forget that a major component of your job at trial is to persuade: to persuade the judge not only of the legal viability of your client’s position, but also to persuade the judge to rule in your client’s favor. Nowithstanding that, I swear that I have, more often than I’d like, sat on the bench scratching my head trying to figure out exactly what it was that counsel was wanting me to do, not only unpersuaded, but also mystified.

As I said, there are many fairly straightforward issues in chancery trials, but some, like undue influence or lack of capacity, or adverse possession, can be challenging not only for the lawyer, but also for the judge. If you can’t present your proof and your authority in a way that the trial judge can understand, expect to fail.

This Tip may appear so obvious that it’s a waste of your time to read it. But take a minute and think back to a trial or motion hearing where you floundered about helpelessly and ineffectively. Might that have been because you never got clear for yourself exactly what it was you were trying to get across or never found an effective way to communicate it?

In one of my first days of classes in law school, the late professor Harry Case in Contracts called on a student to brief a case. The student stammered and stuttered, his frustration made worse by Case’s prodding, until he blurted out, “Well, I know what I am trying to say, but I just can’t put it into words.” Professor Case glowered at the young man and hissed sarcastically, “Well, you had better learn how to do just that, Mr. _____, because that is exactly what a lawyer is hired to do.”

The corrolary to this Tip is what I call THE GOLDEN RULE OF CHANCERY PRACTICE, which is

 “The easier and clearer you make it for the judge to analyze, the more likely it is that you will succeed.”


September 12, 2012 § Leave a comment

Most lawyers propound an interrogatory or two that seek the substance of the other side’s case and what witnesses there are. The query looks something like this:

“State each and every fact, circumstance and event upon which you base the claim in Paragraph 4 of your Complaint for Divorce that the dfendant has been guilty of habitual cruel and inhuman treatment, stating for each the date, time and place of occurrence and each witness thereto.”

Some lawyers, I guess to buy more time, file a response that looks like this:

“Objection. Overbroad and unduly burdensome.”


“Objection:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Or, worse:


Too often these inadequate and lazy objections wind up on a busy judge’s desk, and the judge is called upon to order the lawyer to do what he or she should have done in the first place.

MRCP 33(b)(4) requires that each objection be stated with specificity. In Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss. 2007), the MSSC said that “General objections applicable to each and every interrogatory … are clearly outside the bounds of this rule.”

Not only that, but the rule specifically says that an objection does not necessarily relieve you of the duty to respond. It says that if the request is only partially objectionable, you must state the extent to which it is objectionable and the reason for the partial objection, and then you must proceed to respond to the unobjectionable part.

If you take the position in good faith that you should object to going back through thirty years’ worth of events, then state your objection and state that you are providing the requested information for, say, the past five years because it is the most relevant period, and it is unduly burdensome to go back any further. The specific language of Rule 33(b)(4) requires exectly that.

If you object that your client cannot remember every minute detail, but that you are providing as best you can the dates and identification of the events, say that. Don’t just make a blanket objection.

If you think it’s unreasonable to provide 360 bank statements (that’s 30 years’ worth) because it’s too burdensome, say so, and offer to provide what you think is a reasonable number. That is what the rule contemplates.

So what do you do if you’re confronted with those kinds of objections? Well, you don’t want to get to trial and face the argument that the other side should be able to proceed unfettered because you never asked the court to rule on the objections. I would file a motion to compel and ask the judge to rule on them and set reasonable parameters (I would also make more reasonable requests in the first place, but that’s another story).

I wonder whether all those boilerplate objections that have no conceivable application in chancery are sanctionable. It would be interesting to hear the argument on that.


September 11, 2012 § 2 Comments

After Van and Myria Strickland were divorced on October 15, 2010, and after Van had filed an appeal, the chancellor entered an “Order Clarifying Judgment” on December 20, 2010. The order awarded the parties the passive-growth increase in the value of asset accounts that had been divided in equitable distribution and had the effect of adjusting and changing the parties’ respective shares.

In the case of Strickland v. Strickland, decided by the COA August 28, 2012, the court vacated the order, holding that the chancery court lacked jurisdiction to enter the December order. The court said:

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted). “On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment.” Id. (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1348 (Miss. 1989)). As such, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. “When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” Id. (citation omitted). See generally M.R.C.P. 59(e) (“A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”). See also McNeil v. Hester, 753 So. 2d 1057, 1075 (¶68) (Miss. 2000); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 362-63 (¶7) (Miss. Ct. App. 2007).

¶20. Van filed his notice of appeal on November 9, 2010. Myria responded by filing her notice of appeal on November 23, 2010. On December 20, 2010, the chancery court entered an order that altered the judgment of divorce by changing the division of the property regarding the increase in value of the asset accounts to the date of the distribution, rather than the date of the temporary order. Because the chancery court’s December 20, 2010 order impermissibly broadened and amended the previous judgments of the court, subsequent to the filing of Van’s notice of appeal, we find that the December 20, 2010 order must be vacated as null and void. See Corp. Mgmt., 23 So. 3d at 460 (¶13) (“When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” (citation omitted)). The chancery court lacked jurisdiction to enter such an order. See id. We further find that the May 27, 2011 order, which was before the chancery court on the motion of Myria seeking to enforce the December 20, 2010 order, is also null and void.

I read the authority to mean that, after the time for reconsideration has passed under the MRCP, and once jurisdiction has been acquired by the appellate court, the chancery court can take no action to alter, amend, clarify, modify, or even enforce the judgment. I have had modification cases and contempts filed on judgments that were appealed. The authority cited by Judge Carlton in Strickland makes it clear that as long as the appellate court has not disposed of the appeal the trial court has no jurisdiction to entertain those kinds of actions.

So this is something you need to factor in when deciding whether to appeal. Can your client wait two to two-and-a-half years for a modification or to enforce the judgment while judgment wends its way through the appellate courts?


September 10, 2012 § 2 Comments

Representing military parties in a divorce case got a little more difficult a couple of weeks ago, and you need to pay attention or you might unwittingly victimize a client.

The problem lies in the intersection between state divorce law and federal statues governing military benefits.

The latest case is Mallard v. Burkart, decided by the MSSC on August 30, 2012. The parties were divorced in 2001. A significant part of the financial settlement that Burkart received was 40% of Mallard’s “disposable military retirement pay” for ten years. The language of the PSA to effect this division was as follows:

 Pursuant to the Uniform Services Former Spouses Protection Act (“USFSPA”), 10 U.S.C. §1408, the Court makes the finding followings of fact:

(A) That the Husband is currently an active duty service member in the United States Air Force.

(B) That Husband’s rights under the Soldiers and Sailors Civil Relief Act have been observed in these proceedings.

(C) That Wife and Husband were married for at least ten (10) years during which Husband performed at least ten (10) years creditable service, making Wife eligible for involuntary military deductions under The USFSPA at such time [a]s Husband becomes entitled to retirement pay.

(D) Wife is awarded 40% of Husband’s disposable military retired pay for ten (10) years unconditional. Wife shall continue to receive 40% of Husband’s disposable military retired pay after ten (10) years if she does not remarry or has not lived with someone for a cumulative of sixty (60) days. Payments shall continue until Wife remarries or lives with someone for a cumulative of sixty (60) days upon which time payments shall cease. It is Wife’s responsibility to notify the Defense Finance and Accounting Service and Husband of any change of eligibility for payment.

(E) The Husband voluntarily consents to the exercise of jurisdiction to the State of Mississippi, County of Forrest for division [of] military retired pay.

That would appear to me to be a competently drafted provision that invokes every element needed for Burkart to cash in on her prpoperty settlement. It would also appear to give Burkart a full 40% of Mallard’s retirement pay. But things are not always as they appear, are they?

At some point after the divorce, Mallard elected to take a 60% disability rating as part of his retirement pay. By doing so, under federal law, he reduced his “disposable military retired pay,” dollar for dollar, by 60%. He reduced his payments to Burkart by a corresponding amount, limiting his payments to his ex-wife to the non-disability portion of his retirement. Due to the election, his payments to Burkart fell from $571 a month to between $80 and $120.

When Mallard sued Burkart for modification on some custody issues that are not part of this appeal, Burkart counterclaimed for contempt, based on Mallard’s payment of reduced retirement benefits. She charged that Mallard had improperly structured his retirment so as to defeat her contractual rights in the PSA. The chancellor found for Burkart, awarding her a judgment for $21,213.57, and Mallard appealed.

The MSSC stated the issue before it: ” … today we must determine whether federal law preempts state law, thus precluding state courts from treating as property divisible upon divorce, military retirement pay waived by the military spouse in order to receive military [veterans’] disability benefits.” Justice Carlson’s opinion noted that this was a case of first impression in Mississippi.

The court held that the issue was disposed of in the US Supreme Court case of Mansell v. Mansell, 490 US 581 (1989), in which the high court held: “In this appeal, we decide whether state courts, consistent with the [USFSPA], may treat as property divisible upon divorce military retirement pay waived by the rtetiree in order to receive veterans’ disability benefits. We hold that they may not.”

Another post highlighting a similar preemption problem with military life insurance beneficiary designation is here.

A few observations:

  • The MSSC opinion points out that it is unclear when Mallard was determined to be disabled. In my opinion, if the determination had predated the divorce, there is a fraud question in connection with the PSA.
  • Considering the minefield of federal law and regulation dealing with retired service members, you might want to define your client’s settlement in terms of alimony and property settlement in set figures as opposed to percentages. I know that percentages are a good way to make sure your client is not short-changed, and I know that alimony can terminate, but wouldn’t Ms. Burkart have been better off with an agreement that Mallard would pay her $571 a month in alimony, or that same sum as a division of her property rights in his military retirement? Then it would have been Mallard’s problem to figure out how to pay it.
  • What business do you have representing military parties — either husband or wife — if you don’t keep up with and fully grasp all the ins and outs of federal law and regulations governing military retirement?

None of this is a knock on the lawyers who participated in the drafting of the PSA in this case. This was, after all, a case of first impression in Mississippi. And, apparently and presumably, no one knew at the time of the divorce that there would be a disability election. If they had known, that Mansell case would have loomed large. Very large.


September 7, 2012 § Leave a comment


September 6, 2012 § 3 Comments

The latest case to fall prey to the predatory MRCP 81 is Pearson v. Browning, decided September 4, 2012, by the COA. We last looked at the vicissitudes of the rule in a post about Brown, et al v. Tate.

The case that brought Pearson v. Browning to the COA began when Dennis Pearson filed a pro se pleading against his ex-wife, Patricia Browning, seeking modification and contempt. Although the procedural history is not entirely clear, it appears that Patricia filed a counterclaim-like pleading charging Dennis with contempt. Both matters came up for hearing on February 2, 2009, when dennis failed to appear, and the chancellor dismissed his claims. The judge ordered that Patricia’s claims be reset for hearing for August 6, 2009. On or about June 10, 2012, however, the court administrator gave notice that the date was again reset, for November 3, 2010. There is no court order setting the November date.

Patricia’s attorney sent Dennis a letter, dated October 15, 2010, notifying him of the November 3, 2010, trial date. Dennis testified that he did not receive it until November 1, 2010, and he filed a letter complaining of the short notice.

On November 3, 2010, Dennis appeared personally pro se and protested the lack of time to prepare his defense and lack of notice of what he was being charged with. He moved for a continuance. The judge denied his motion and pressed on to hearing. On November 18, 2010, the chancellor entered a judgment against Dennis in favor of Patricia in the sum of $53,528.22.

The COA reversed. Judge Griffis’s opinion spells out the basic law of MRCP 81:

¶7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi [v. Sanghi], 759 So. 2d at 1253 (¶¶11, 14) (citing Leaf River Forest Prods., Inc., 661 So. 2d 188, 194 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, 273-74 (Miss. 1994)); see M.R.C.P. 5.

¶9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955); Roberts v. Roberts, 866 So. 2d 474, 476-77 (¶¶7-8) (Miss. Ct. App. 2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779 (1984).

¶12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So. 2d 404 (Miss. Ct. App. 2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons.

The COA concluded that Patricia’s “motion” was, in fact, a petition for contempt that required Rule 81 notice, that the court administrator’s notice was not adequate to suffice in lieu of a proper MRCP 81 summons, that Bailey is distinguishable, and that Dennis had not waived the jurisdictional issues by making a voluntary appearance. The court reversed the chancery court judgment for lack of jurisdiction.

The four bases listed above for determination of the Rule 81 issue deserve further attention in one or more future posts and will not be addressed further here.

A few observations based on the foregoing:

  • I call this case curious because, once Dennis had been properly served with the counterclaim, in most districts that I am aware of, he was only entitled from that point to Rule 5 notice. This case seems to say either that a counterclaim requires a Rule 81 process, or that one must be issued if the original plaintiff’s pleading is dismissed. I have never seen this practice in my 29 years’ experience under the MRCP. I admit that I have had trouble understanding the exact procedural chronology of this case, so the problem may be mine. But if my understanding is correct, this case is a major change in Rule 81 practice that you need to study very carefully.
  • Once again, if the matter that is the subject of your Rule 81 summons will not be heard on the day specified in the summons, you must have the court enter an order on or before (caveat … as to before, see below) the day noticed for hearing continuing the case to a specific date and time in the future.
  • Although the COA said that the case must be continued ” … on or before …” the date set in the summons, in my opinion only an agreed order of continuance dated before the summons date would be effective. If you unilaterally reset the case by order before the date set in the original summons, you are depriving the defendant of notice and the opportunity to defend.
  • As long as Dennis was in the status of a petitioner (plaintiff) who had invoked the court’s jurisdiction, he was entitled only to MRCP 5 notice; after he lost his petitioner status, he became entitled to the protection of Rule 81 notice.

As a practice matter, if you were Patricia’s lawyer, you could have avoided most of the above problems had you seen to it yourself that proper continuance orders and notices to the opposing side were presented to the judge and entered in a timely fashion. It’s your case, after all, and judges and court administrators have lots on their respective plates. As I’ve said before, judges and court personnel do their best, but the bottom line is that they are not responsible for the proper handling of your case; you are.


September 5, 2012 § 4 Comments

Holly and Christopher were divorced in 2007, and Holly had custody. Holly remarried and moved with the children to Pennsylvania.

Holly filed for modification in the Chancery Court of Lowndes County alleging that she was a stay-at-home mom who needed more money from Christopher to be able to pay for the children’s various expenses. She said that the $1,000 Christopher was paying was simply not enough to cover the children’s expenses, and she wanted the judge to apply the child support guidelines at MCA 43-19-101 to increase Christopher’s child support to what it should be at his increased income. 

The chancellor reviewed the parties’ financial statements, along with the other evidence in the record, and found that the statutory amount of child support payable by Christopher should be $1,400. Nonetheless, she denied Holly’s petition to modify based on the fact that Christopher had to pay the expense of visitation between Mississippi and Pennsylvania, and used that fact as a basis to depart from the statutory guidelines, pursuant to MCA 43-19-103, which sets out the critera the court is to use to justify any departure from the guidelines.

Holly appealed, and in Quinones v. Garcia, decided August 28, 2012, the Coa affirmed.

The appellate court rejected several of Holly’s arguments, including that the chancellor had improperly considered her current spouse’s income and that Christopher had manipulated his mandatory deductions, and held that it was proper for the chancellor to deviate from the statutory child support guidelines where the judge ” … makes ‘an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.'” Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005) (citing McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992)). The court found substantial evidence to support the chancellor’s decision.

When you are trying a child support case, don’t get in lock-step with the idea that the statutory guidelines are inflexible. Look at the deviation criteria. If one of them applies — upward or downward — in your case, use it to your advantage. Offer evidence to support your argument. In this case, Christopher’s attorney saved his client $400 a month.


September 4, 2012 § Leave a comment

When is a judgment entered?

It’s an important question to ponder because some drop-dead deadlines start ticking away on entry of a judgment. MRCP 59 and 60 are two rules that have those kinds of provisions. MRAP 4(a) says that the notice of appeal to the MSSC must be filed ” … within 30 days after the date of entry of the judgment or ordered appealed from.” There are other rules with similar deadlines tied to entry of the judgment.

The last sentence of MRCP 58 says “A judgment shall be effective only when entered as provided in MRCP 79(a).”

MRCP 79(a) directs that the chancery clerk shall keep a General Docket in which shall be recorded all papers filed with the clerk, all process issued and returns, appearances, orders, judgments. Each entry is to show the date the entry is made.

In the case of Univ. of So. Miss. v. Gillis, 872 So.2d 60, 63 (Miss.App. 2003), the court held that a judgment becomes effective on the date it is entered on the docket.

When that judgment is entered can have a big effect on when your clock starts ticking for post-trial and appellate proceedings.

So here is my opinion about what are not final judgments:

  • A document styled Final Judgment that has been file-stamped by the clerk, but is not entered on the docket.
  • A document signed by the judge but not docketed.
  • Even if the judge endorses the judgment “filed,” per MRCP 5(e), it is still not effective until entered on the docket by the clerk. MRCP 5(e) allows the judge to endorse a pleading or other document “filed,” but I believe that is only an effective date as to the filing of a pleading. It does not make a judgment effective because there is no entry on the General Docket. To me, the judge’s endorsement has no more effect than the clerk’s file stamp. It shows when it was received by the clerk, but does not render the judgment effective.    
  • If the judge renders an order or judgment from the bench and signs it, it is still not effective until docketed. It is the act of docketing that makes the judgment final and effective.

Of course, a decision or opinion is not the same thing as a judgment. There is case law that says that the court’s bench opinion does not have the finality of a judgment. Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987); Hinson v. Hinson, 877 So.2d 547, 548 (Miss.App. 2004).

On a related point, in 2004, Rule 58 was amended to add the language that even if a final judgment is improperly titled, unless prejudice can be shown, it will be afforded the effect of a final judgment if its language clearly indicates it is so. The amendment effectively overrules a line of Mississippi Supreme Court cases that held that if a court order did not include the word “judgment,” it would not be treated as one even where no prejudice could be shown: Thompson v. City of Vicksburg, 813 So.2d 717 (Miss.2002); Mullen v. Green Tree Financial Corp., 730 So.2d 9 (Miss.1998); and Roberts v. Grafe Auto Co., Inc., 653 So.2d 250 (Miss.1994).

September 3, 2012 § Leave a comment

Labor Day. Courthouse closed.

Where Am I?

You are currently viewing the archives for September, 2012 at The Better Chancery Practice Blog.