MRCP 81 Under the Microscope … and a Poll
July 31, 2013 § 7 Comments
The Supreme Court’s Advisory Committee on Rules has set up a subcommittee of chancellors and a couple of appellate judges to study Rule 81 to determine whether it should be changed in any way, and, if so, how. The subcommittee will next meet August 9, 2013.
I am asking all readers of this blog to email me at email@example.com with any suggestions you have about R81, no matter how minor or major, whether to keep it as is, or whether to change it in some fashion, or even to eliminate it. Or you may just want to make a comment about it. Any and all emails you send me will be shared with the subcommittee, and will be helpful in our task. Many of you do not comment here, and that’s okay, but I would urge you, please, to give me your input on this rule that has so much impact on our practice in chancery court.
WordPress has a poll feature. I’ve never used it, but I thought it might be fun to employ it as a gauge of legal opinion on R81. What say ye? I’ll make sure the subcommittee knows the results.
Child Dependency and Taxes
July 29, 2013 § Leave a comment
Randy Wallace has some useful info on his blog in a post entitled Who Gets to Claim the Child on Taxes?
It’s a subject you need to be on top of, because quite often you are called upon to include such a provision in your clients’ property settlement agreements. You want to make sure that the language you choose will do exactly what your client expects it to do with the IRS.
Remember always to include language that requires both parties to execute and deliver the proper forms in a timely fashion that are needed to carry out the terms of the agreement.
July 26, 2013 § Leave a comment
“As I walked out the door toward the gate that would lead to my freedom, I knew if I didn’t leave my bitterness and hatred behind, I’d still be in prison.” — Nelson Mandela
“To forgive is to set a prisoner free and discover that the prisoner was you.” — Lewis B. Smedes
“Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction. … The chain reaction of evil — hate begetting hate, wars producing more wars — must be broken, or we shall be plunged into the dark abyss of annihilation.” — Martin Luther King, Jr.
Reprise: The Hidden Costs of Divorce
July 25, 2013 § 1 Comment
Reprise replays some blog posts of note from the past that may be of some use to you today …
HIDDEN COSTS OF DIVORCE
June 13, 2011 § 3 Comments
John and Marsha have decided that they are tired of living in their own, personal soap opera, and they have agreed to an irreconcilable differences divorce. It looks pretty simple:
Marsha will get the former marital residence. It’s paid for and Marsha intends to stay there. The house sustained some damage in a wind storm a couple of years ago, and the parties got $10,000 for repairs from insurance, but they spent it on a Hawaiian vacation, with a few days in Vegas on the way out, in an unsuccessful attempt at refreshing their marriage. Marsha says she can get the repairs done or not because they don’t affect its habitability. The roof needs replacing, but it’s been patched and doesn’t leak. She says she’ll fix it if and when it leaks or when she sells the house, but she does not have the $6,000 it will cost right now.
The parties own two adjoining commercial lots worth about $15,000 each. Marsha has agreed to take the lot they purchased in John’s name in 1990 for $1,500 before Wal-Mart located down the street. John will get the jointly-titled lot they purchased for $12,500 several years ago. A car lot is expanding and has expressed an interest. Marsha would like to settle the divorce as soon as possible so as to cash in. Marsha owes $14,000 on her credit cards, and she’s behind in her payments, so she needs as much cash as she can get out of sale of the lot.
The parties will split the 1,000 shares of Wal-Mart stock that they accumulated through the years. Marsha really doesn’t know much about stock, so John has generously agreed to divide the shares.
Marsha has enjoyed driving the 2008 Jaguar that John bought her several years ago in an attempt to make up after she caught him in a questionable situation with a waitress from the Waffle House. The car is paid for, and Marsha loves it because she has never had a nice car before. She will get it in the divorce.
John has agreed to pay Marsha $1,000 a month in rehabilitative alimony for 36 months. Even with the alimony, it will be a tight squeeze financially for Marsha, so she doesn’t need any unpleasant financial surprises after the divorce is final.
Marsha is in a hurry. She wants you to do up the papers and she will pick them up to go over with John tomorrow, so she can get them filed right away.
It’ll be a snap to prep the PSA, and you are tempted to just hand the notes over to your secretary so they can be done while you hit the golf course.
Before you jump on this, though, ask yourself whether Marsha will really be getting what she thinks she is bargaining for. Consider:
- The divorce will be a transaction effecting a change of ownership in the former marital residence, triggering a re-rating of the homeowner’s insurance. Because the hurricane repairs have never been done and approved by the insurance company, Marsha’s homeowner’s insurance premium is likely to skyrocket. Not only that, but there are other factors that can adversely affect Marsha’s insurance premium, including her credit rating, which is questionable due to the credit cards. In order to get her homeowner’s insurance premium back with a reasonable range, she will have to spend that $6,000 on the roof and complete the other repairs. How can she find out in advance whether she will have a problem? Marsha can get a free insurance C.L.U.E. (Comprehensive Loss Underwriting Exchange) report by writing CLUE, Inc. Consumer Disclosure Center, P. O. Box 105295, Atlanta, GA, 30348-5295, or by calling 1-866-312-8076. An insurance agent can help her decipher the report. And, as you probably know, she can get a free credit report once a year.
- When the commercial lots are sold, Marsha will be paying capital gains taxes, currenty 15%, on $13,500. John will be paying capital gains on just $2,500. Marsha’s tax bite will be $2,025, leaving her $12,975. John’s taxes will be a mere $375, allowing him to pocket $14,625, or $1,650 more than Marsha.
- Also, has Marsha gotten a title opinion on the commercial lot titled in John’s name? It would be a bitter pill indeed to discover when she goes to sell it that John borrowed money against it without her knowledge.
- The stock has the same pitfall as the commercial lots. Stock purchased for $25 a share years ago will carry a much heftier capital gains burden than will the shares purchased for $65 a few years ago. Moreover, John can allocate himself the shares that have sustained losses in the recent downturn. Yet the parties are treating all the shares the same, and, to make it worse, John will call the shots.
- As for her ride, Marsha needs to look at it as a cash drain. How much is she willing to let it drain her? The insurance alone is more than $1,500 a year, and this year’s tag, which is now due, is $862. Not only that, it uses exclusively premium gas, and has never gotten the 21 miles to the gallon that the dealer promised. Yes, it is paid for, but would she do better selling it and taking the cash to buy something more economical? Can she even afford this car?
- Finally, the alimony is taxable income to Marsha unless the parties agree that it will not be taxable. John will not likely agree due to the fact that he will get to claim it as a deduction. Is Marsha aware of this? Can you negotiate an extra $300 or so a month for Marsha to use to pay her income taxes?
You can do the papers exactly as Marsha dictated, or you can sit her down and bring all these matters to her attention. It’s the difference between acting as Marsha’s clerk-typist and acting as her lawyer. You get to decide.
Adverse Possession Refresher
July 24, 2013 § 6 Comments
The COA decision in Roberts v. Young’s Creek Investments, Inc., decided July 16, 2013, is yet another decision in the field of adverse possession that you should file away for future use the next time that you find yourself litigating that issue in chancery court.
All adverse possession cases are fact-driven, and this particular case is no exception. But it’s not the facts we’re interested in here. It’s the law. Here are some excerpts from the opinion that flesh out the legal requirements:
- ¶7 “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152-53 (Miss. 1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So. 3d 1134, 1137 (¶6) (Miss. Ct. App. 2012) (citing Buford v. Logue, 832 So. 2d 594, 600 (¶14) (Miss. Ct. App. 2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So. 2d at 136 (¶16).
- Claim of Ownership. ¶8. Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007) (citing Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998)). The Mississippi Supreme Court has stated:
When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.
Id. at (¶8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.
- Hostile. ¶10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So. 2d 817, 819-20 (Miss. 1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So. 2d 983-94 (¶34) (Miss. Ct. App. 994 (¶34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So. 2d at 1118 (¶12).
- Open, Notorious, and Visible. ¶13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”Wicker, 937 So. 2d at 994 (¶35) (quoting Blankinship, 605 So. 2d at 820).
- Continuous and Uninterrupted for a Period of Ten Years. ¶14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years.See Miss. Code Ann. § 15-1-13(1) (Rev. 2012). This period of possession must be continuous and uninterrupted. Id.
- Exclusive. ¶15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.”Wicker, 937 So. 2d at 995 (¶40) (quoting Rawls v. Parker, 602 So. 2d 1164, 1169 (Miss. 1992)) (internal quotations omitted). It does not mean that no one else can use the property.Apperson, 950 So. 2d at 1119 (¶15). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).
- Peaceful. ¶16. … Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So. 2d 1004, 1009 (¶15) (Miss. 2001).
- Permissive Use. ¶17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So. 3d 846, 849 (¶11) (Miss. Ct. App. 2012).
- Color of Title. ¶18. … “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug. 1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.”Id. at 474. … The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property.
A checklist for the elements adverse possession is here.
A COA decision by Judge Carlton analyzing adverse possession elements is here.
A COA decision by Judge Roberts discussing some of the adverse possession factors is here.
I was glad to see Judge Irving, for the COA, point out that color of title is not one of the elements of adverse possession. I hear it mentioned in nearly every adverse possession case I hear, and sometimes the contortions people go through to squeeze the facts into that element can be interesting to watch. Color of title may enter into the conversation when there is a defect in the deed conveying title that gives rise to the dispute, but it’s not one of the elements that the court must consider in every adverse possession case.
I don’t know about you, but when I practiced, I could not amass enough cases to help me understand those arcane phrases about unfurling flags and keeping them flying, and that an “enemy has invaded his domains,” and the planting of a standard of conquest, to make me feel comfortable. Every time I encountered an adverse possession case I had images of cavalry charges, bloody banners falling in the clash of arms, and castles stormed by medieval knights.
Termination in the Best Interest
July 23, 2013 § Leave a comment
The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.
In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:
¶9. Relevant to the case at hand, section 93-15-103(3) provides:
Grounds for termination of parental rights shall be based on one or more of the following factors:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
. . . .
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .
The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …
The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:
[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .
It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.
Sibling and Step-parent Visitation
July 22, 2013 § 1 Comment
Unlike grandparent visitation, which became a part of Mississippi’s legal landscape by act of the legislature in 1983, sibling and step-parent visitation are matters that have not found their way into our body of law.
In the case of Scruggs v. Satterfiel, 693 So.2d 924 (Miss. 1997), the court was confronted with the question whether siblings have a right to visitation with each other.
Stacey Scruggs and her half-brother, Dustin Anthony “Tony” Satterfiel, were the children of Donna Sue Bowman, who died. After their mother’s death, Donna’s sister, Sandra Friend, got guardianship of Stacey, and she sought to keep the two children together in Meridian, but Tony’s natural father, who lived in Ackerman, was awarded his custody in chancery court, and Tony moved to Choctaw County with him.
At first, the parties arranged for visitation between the siblings, but when disputes and differences arose, Stacey, by Sandra, filed suit in Lauderdale county Chancery Court, seeking visitation with her brother. The chancellor dismissed the petition, finding that there was no legal basis to support an award of visitation in the case. Stacey appealed.
The MSSC affirmed the dismissal:
Stacey and Friend first assert that although no statutory provision has been made for visitation of siblings separated by divorcing parents, the circuit court [sic] erred in not ordering the parties to provide for the children to have regular visits with each other. In support of their argument, they look to case law in Mississippi and other jurisdictions which emphasizes the importance of considering the best interests of the child and preserving sibling relationships. Further, they turn to Miss.Code Ann. § 93-16-1, et seq., which provides for grandparent visitation. Saterfiel merely recites the chancellor’s specific findings made pursuant to the Litigation Accountability Act and asserts that because there is no Mississippi law on the subject of sibling visitation, the chancellor properly dismissed the case.
  This Court, as Scruggs and Friend point out, has recognized the value of encouraging sibling relationships. In Sellers v. Sellers, 638 So.2d 481 (Miss.1994), which involved a custody dispute between an aunt and a natural parent, we clarified our position that “the presumption of awarding custody to a natural parent should prevail over any imperative regarding the separating of siblings.” Id. at 485. Nevertheless, quoting Mixon v. Bullard, 217 So.2d 28, we reiterated that:
The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. [Emphasis in original]
Sellers, 638 So.2d at 484, quoting Mixon, 217 So.2d at 30-31 (emphasis added). Despite our respect for the preservation of sibling bonds, however, it is not our prerogative to make new laws governing sibling visitation. That decision belongs to the legislature.
By statute, the legislature has extended third party visitation rights to grandparents when “such visitation rights would be in the best interest of the child.” Miss.Code Ann. § 93-16-5. While, ordinarily, the exercise of grandparent visitation rights might serve as a catalyst for preserving the relationship between half-siblings separated by the death of the common parent, in the case sub judice, the only known maternal grandparent died several months before the children’s mother’s death. We recognize, as Scruggs and Friend argue, that some jurisdictions, in the absence of any statutory imperative, have made provision for sibling visitation when the children’s best interests so dictate. See, e.g. In re Interest of Daniel W., 3 Neb.App. 630, 640, 529 N.W.2d 548, 555 (1995)(as distinguished from grandparent’s “right” to visitation which is derived through natural parent’s parental rights, “siblings possess the natural, inherent and inalienable right to visit with each other.” quoting L. v. G., 203 N.J.Super. 385, 497 A.2d 215, 222 (1985)); In re Custody of D.M.M., 137 Wis.2d 375, 387-388, 404 N.W.2d 530, 535 (1987)(statutes providing visitation to family members are intended to supplement, not supplant, common law rights). We are not so inclined. Rather, we invite the legislature to consider the matter and to expand the rights set forth in § 93-16-5 to siblings or other third parties as it sees fit.
The legislature has not RSVP’d. Until it does, it appears there will be no sibling visitation in Mississippi.
In the case of Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009), in a procedurally peculiar case, the stepfather, Jackie Ray Pruitt, had obtained an order of visitation with his stepchildren in a habeas corpus proceeding before one chancellor. When he sought to enforce the order before a successor chancellor, the natural father, Richard Payne, objected, and the second judge struck down and dismissed the prior order, noting that the stepfather had no right cognizable under Mississippi law to visitation. The COA affirmed, at page 811:
In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that their biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number 06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.
The only visitation rights in derogation of the common law that have been established in Mississippi are visitation rights on the part of grandparents. That’s the way it will stand unless and until the legislature sees fit to expand the scope of third-party visitation.
Scene in Mississippi
July 19, 2013 § 2 Comments
Grandparent Visitation: How Much?
July 18, 2013 § 2 Comments
In most cases, grandparent visitation should not be as comprehensive or extensive as that of natural parents. Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).
But just what amount of visitation is reasonable for grandparents? Here is a collection of cases addressing the question:
- Settle v. Galloway, 682 So.2d 1032 (Miss. 1996). The MSSC affirmed an award of alternating weekends, plus Easter and Thanksgiving in alternating years. The court pointed out that grandparent visitation on alternating weekends would probably be excessive in the usual case, but that it was appropriate in this particular case because the non-custodial parent was in the military and could not exercise his usual visitation.
- Martin v. Coop, 693 So.2d 912 (Miss. 1997). The MSSC reversed an award of 86 days in even-numbered years, and 81 days in odd-numbered years. The court found that “Grandparents do not stand in lieu of or in the shoes of the deceased parent,” and “[V]isitation granted to grandparents should not be the equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id., at 916.
- Zeman v. Stanford, 789 So.2d 798 (Miss. 2001). In a case where the non-custodial parent was incarcerated, and was unable to exercise any visitation, the MSSC affirmed a chancellor’s award of one weekend per month, finding that the situation was analogous to the Settle case, supra.
- Woodell v. Parker, 860 So.2d 781 (Miss. 2003). Affirmed the chancellor’s award of: one weekend per month; every other Spring Break/Easter holiday; the Friday and Saturday following Thanksgiving; the five days following Christmas; two weeks during the summer; and regular telephone and “postal” access. Id., at 790.
- T.T.W. v. C.C. and J.C., 839 So.2d 501 (Miss. 2003). The court remanded for a full consideration of the Martin factors in a case where the parents resisted visitation due to the grandparents’ interference with parental decisions and discipline. Interestingly, the court suggested that, “on remand the chancellor might consider options other than a wholesale grant or denial of visitation,” and pointed out that supervised visitation might alleviate many of the problems that had arisen. Id., at 506.
Remember that the amount and extent of grandparent visitation may only be determined by the trial court after application of the Martin v. Coop factors.
Visitation may be modified “for cause.” MCA 93-16-5; Rose v. Upshaw, 69 So.3d 74, 79 (Miss. App. 2011).
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]