“QUOTE UNQUOTE”

May 31, 2013 § Leave a comment

“I always think of nature as a great spectacle, somewhat resembling the opera.”  —  Bernard Le Bovier de Fontenelle

“Every year, back comes Spring, with nasty little birds yapping their fool heads off and the ground all mucked up with plants.”  —  Dorothy Parker

“That’s the problem with nature. Something’s always stinging you or oozing mucus on you. Let’s go watch tv.”  —  Bill Watterson

Plastic 06-23-12 002

ESSENTIAL INGREDIENTS OF THE CONSENT TO DIVORCE

May 30, 2013 § 4 Comments

Kenton McNeese filed a pro se appeal raising the issue, among numerous others, whether the consent for an irreconcilable differences that he and his wife, Katye, had executed and presented to the trial court for adjudication was valid or not. He took the position that it was invalid, thereby depriving the chancellor of authority to grant the divorce. His appeal raised two issues for the MSSC to address regarding validity of the consent:    

  1. Whether or not the consent was in compliance with the statute; and
  2. Whether the chancellor properly overruled Kenton’s motion to “expunge” or withdraw his consent.

In the case of McNeese v. McNeese, handed down April 25, 2013, Justice Coleman, writing for a unanimous court, summed it up about as well as it can be said:

¶13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. . . .

Miss. Code Ann. § 93-5-2(3) (Rev. 2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So. 2d 1121, 1124 (¶ 9) (Miss. 1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly [FN1] and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.

[FN1] Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss. Code Ann. § 25-33-17 (Rev. 2010).

¶15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. [Fn2] Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.

[Fn2] A consent judgment is a final judgment, more like an agreed order, which “must be approved and signed by counsel for all parties . . . before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.

¶16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev. 2004). See also McDuffie v. McDuffie, 21 So. 3d 685, 689 (¶ 7) (Miss. Ct. App. 2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jernigan v. Young, 61 So. 3d 233, 236 (¶ 14) (Miss. Ct. App. 2011). “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce. . . . What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So. 2d 353, 356 (¶ 11) (Miss. Ct. App. 1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.

It might be a good idea to look over the form you’ve been using for ID divorce consents to make sure it includes all of the required elements. Just because you’ve used it a hundred times does not mean that it complies with the statute.

Why is it important to be in line with the staturte? Well, there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid. You wouldn’t want that to cause the demise of a case you thought had been settled and done.

SERIAL MRCP 59 MOTIONS

May 29, 2013 § Leave a comment

The MSSC case McNeese v. McNeese, decided April 25, 2013, is one that addresses a dizzying variety of points. But I want to focus on the particular aspect of the post-trial motions filed by both parties.

By way of background, the case arose after Kenton and Katye McNeese entered into a consent to divorce on the sole ground of irreconcilable differences, reserving for adjudication the issues of custody, visitation, support, equitable distribution, and alimony. After the judge rendered a judgment on September 2, 1011, mostly in Katye’s favor, she timely filed an MRCP 59 motion complaining that Kenton had failed to disclose certain items in his financial disclosures. Kenton neither responded nor filed his own R59 or 60 motion.

Following a hearing on Katye’s motion, the court entered an order on October 12, 2011, ruling on Katye’s motion, followed on the same day by an amended opinion and judgment clarifying the original opinion. And that is when all proverbial hell broke loose.

Kenton fired his attorney and, on the day following entry of the amended judgment, filed pro se “Motion to Reconsider, Motion for New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings.” His motion(s) were filed 31 days after entry of the original judgment.

[Reconsideration, or Rehearing?]

The chancellor, in a display of saintly forebearance that one would be unlikely to experience with this judge, patiently allowed Kenton to present his argument and even evidence, the bulk of which was an attempt to show how the judge was wrong in his original ruling. The chancellor denied Kenton’s motion, Kenton filed a pro se appeal, and the MSSC took 23 pages to arrive at the word, “Affirmed.”

Let’s stop right there. Here are a couple of questions I have about what happened:

  • Kenton’s motion was an attack on the trial judge’s original ruling, essentially asking him to “reconsider” what he had done, or, in the parlance of the rule, for a “rehearing.” Those are R59 issues, that were required to be asserted within ten days of entry of the judgment, but he did not file his motion until 31 days after entry of the judgment. So why was he allowed to raise those points at that late date, and again on appeal? The amended judgment only clarified the original judgment, and apparently did not add anything substantive. Even if it had, however, I don’t think as a matter of law that entry of the amended judgment opened that door back for him, for the reasons I will state below.    
  • In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments. So how was Kenton able to get away with it in his case?
  • Kenton’s motion, since it was filed more than 10 days after entry of the original judgment, was properly a R60 motion. It did raise a single, valid R60 issue, namely the existence of newly-discovered evidence. The chancellor did allow him to proffer the allegedly newly-discovered evidence, which the judge ruled to be insignificant, and the MSSC affirmed. All of the other issues raised by Kenton were outside the scope of R60. I would have rejected them as untimely, and I hope I would have been affirmed.

These may appear to be quibbling points, but litigants, pro se and represented alike, are entitled to a final conclusion to their litigation travail. Untimely and insubstantial post-trial motions delay that finality and inject issues into the appeal that waste time and resources of the appellate courts to address and resolve.

WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE

May 28, 2013 § Leave a comment

I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.

I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?

The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.

That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).

I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:

¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.

If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.

May 27, 2013 § Leave a comment

State Holiday.

Courthouse closed.

DISPATCHES FROM THE FARTHEST OUTPOSTS OF CIVILIZATION

May 24, 2013 § Leave a comment

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THE CHARM OF CHECKLISTS

May 23, 2013 § Leave a comment

For those of you who are relatively new to this blog, I want to call your attention to how crucial it is to put on proof of the various factors that have been mandated by the appellate courts to make your case. It’s a subject I bring up every now and then to make sure that lawyers know about it.

It’s what I call trial by checklist. You can think of the factors as a checklist of what you need to prove to make your case. If you fail to put on proof of the factors, as I have said here many times, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers print out these checklists and use them at trial. Please feel free to copy these checklists and use them in your trial notebooks. You’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Up there on the right is a box labeled “Select Category.” There is a “Checklist” category that will take you to all the posts with and about checklists.

 

WHEN FINANCIAL PROOF IS JUDGE ABUSE

May 22, 2013 § 10 Comments

The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.

Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.

No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.

In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:

¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.

The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.

I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.

Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.

MIXED ATTORNEY’S FEES

May 21, 2013 § 1 Comment

The COA decision in Tidmore v. Tidmore, decided May 14, 2013, underscores the mixed attorney’s fee, a fairly common phenomenon in chancery court. It happens when one brings an action combining two or more different causes of action. It could be a contempt and modification, or a divorce with an allegation of contempt of the temporary order, or a suit seeking injunctive relief and sanctions.

In reversing the chancellor’s award of attorney’s fees assessed against Nicole Tidmore in favor of her ex-husband, Michael, the COA, by Judge Irving, said this:

¶10. Nicole argues that the chancellor erred in awarding attorney’s fees to Michael since some of the attorney’s fees were incurred in pursuing a modification of custody. We note that “attorney’s fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So. 2d 834, 841 (¶32) (Miss. Ct. App. 2003). However, it is well established that “[a] chancellor may award attorney’s fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So. 2d 1033, 1040 (¶25) (Miss. Ct. App. 2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So. 3d 65, 73 (¶26) (Miss. Ct. App. 2009).

¶11. Additionally, Mississippi Code Annotated section 93-5-23 (Supp. 2012) requires the chancellor to impose attorney’s fees for unsubstantiated allegations of abuse:

If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.

(Emphasis added).

¶12. In this case, the chancellor ordered Nicole to pay Michael’s attorney’s fees and the GAL fees as follows:

With regard to [Michael’s] claims for attorney’s fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt . . . . As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.

After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney’s fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]

¶13. We cannot say that the chancellor abused his discretion in awarding attorney’s fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole’s allegations of abuse against Michael were unsubstantiated. The chancellor’s order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole’s contemptuous conduct.

¶14. While Michael is certainly entitled to an award of attorney’s fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney’s bill. Although there may be difficulty in allocating the attorney’s fees, the chancellor should nonetheless make that determination. Therefore, the amount of the award of attorney’s fees is reversed and this issue is remanded to the chancellor for a determination of the amount of attorney’s fees that should be awarded to Michael for the contempt proceedings and defense against the baseless abuse allegations.

So another attorney’s fee award bites the dust for lack of an essential finding. It’s not clear from the opinion whether the chancellor had all the information he needed to make the allocation of fees as lucid as it could or should have been.

Remember to give the judge all the essential information he or she needs to make a decision that would stand up if there is an appeal. All the judge needed here was time records or testimony to show how the hours devoted to the case by the attorney were spent as to each issue. There is no one who knows that better than the attorney who did the work. Naturally, there will be some judgment calls as to how to categorize various activities, but that is what cross examination is for, isn’t it?

While we’re on the issue of attorney’s fees, the COA touched on Michael’s request for an appellate attorney’s fee:

¶15. Michael also asks this court to order Nicole to pay his attorney’s fees on appeal. “When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded [by the chancellor].” Carroll v. Carroll, 98 So. 3d 476, 483 (¶26) (Miss. Ct. App. 2012) (citing Lauro v. Lauro, 924 So. 2d 584, 592 (¶33) (Miss. Ct. App. 2006)). However, because Nicole prevails on this issue, Michael is not entitled to attorney’s fees on appeal.

MAKING SCHOOL GUARDIANSHIPS LESS BURDENSOME

May 20, 2013 § Leave a comment

Guardianships of the person are a pretty common phenomenon in these parts, as they are, I am sure, wherever you might be. I call them “school guadianships,” because that’s what they traditionally were used for — to get children into particular schools, ordinarily via grandparents — within the tolerance of the school district involved.

As it stands now, MCA 93-13-38 requires a guardianship of the person to observe all of the same formalities as an estate, including notice to creditors, probate of claims, accountings, and so on, even though there is no estate whatsoever.

That’s going to change, effective July 1, 2013. HB 725, sheparded through by Rep. Greg Snowden, changed the statute to provide that:

“The requirements in a guardianship of the person are modified to the extent that notice to creditors is not required, reports will be made only as often as the court requires, and the guardianship may be closed without the need for any accounting unless otherwise determined by the court. Any assets that are received shall be reported immediately and at that point the guardianship shall be deemed to be a guardianship of the personand estate and all requirements for guardianship of the person and estate shall be followed.”

This is a welcome clarification and simplification. In this district we have been requiring reports every other year. The report is a simple, two-sentence statement that: (1) the guardianship is still necessary; and (2) no assets have come into the guardianship. We have found that eventually the ward reaches majority, and the lawyer files a report asking to close as no longer necessary. When I took office I found guardianships of the person that were as much as 25 years old that had never been closed. There’s no good reason for that. I asked Rep. Snowden to address this, and he did an effective job.

We have significant number of these, some of which should probably be converted to Special General Guardianships after those become effective July 1, 2013. Despite my “school guardianship” label, most nowadays involve grandparents taking grandchildren to raise, and needing a guardianship to obtain medical care, enroll in school, etc.

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