October 31, 2013 § 6 Comments
Every chancellor has his or her own preferences about how lawyers should conduct themselves in court. You need to acquaint yourself with your chancellor’s likes and dislikes, and attune yourself accordingly. Some practices, though, are universal. Violate them and you will likely suffer the wrath — or at least the dissatisfaction — of your chancellor. Here they are:
- Be on time for court. This is a cardinal rule, and violation can cost you, as spelled out in UCCR (that’s Uniform Chancery Court Rules, for the unitiated)1.05:
“When any civil action has been set for, or adjourned to, a particular day or hour, all officers, parties, witnesses and solicitors whose presence is necessary for the trial shall be present at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.”
In other words, you’d better have a reason for your tardiness that falls in a category other than negligence or willfulness, or you may pay the price. Tardiness is not only rude and disrespectful of the court, it’s also rude and disrespectful of all the others who are assembled awaiting your late appearance.
- Make sure your witnesses understand decorum. UCCR 1.01 says that all proceedings are to be conducted “with due formality and in an orderly and dignified manner.” A trial in chancery is not conducted like a trial in Judge Mathis’s court, although it seems like a significant number of laypeople think so. Tell them to avoid banter and talking to or seeking input from folks in the audience. Advise them to listen carefully to and answer the questions asked, and to behave always in a respectful manner.
- Leave the Doberman act at home. No matter what you’ve seen in the movies, it’s not effective in a bench trial to try to treat witnesses like you were an attack dog. There’s no jury to impress. The judge will likely be unimpressed, and may even rebuke you for browbeating the witness. Sure, it’s okay to bear down and press the witness, testing credibility, but UCCR 1.01 says that “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.” It’s a search for the truth, not theater.
- Three people talking at the same time makes for a bad record. You have to educate your clients and witnesses not to speak over the questions or statements of others. It’s impossible for the court reporter to records that kind of thing accurately, if at all. And keep that in mind yourself. I have had to tell two lawyers and a witness all speaking at the same time to hush, and then I’ve had to tell them not to interrupt or speak over me while I am trying to set matters straight. We all have a responsibility to make a good record, but that’s impossible when everyone is speaking over one another.
- Stand when addressing the court. This is another principle set out in UCCR 1.01. It makes good sense, because it not only shows respect for the court, but it demonstrates for all the laypeople present that this is not like a conversation in the living room; it’s a formal court proceeding.
- Speak up. Many judges are as old as I am. That means that they — as did I — likely spent a youth of dissipation listening via headsets to the Rolling Stones with the volume cranked up to the max. As a result, our hearing is not the best. You grew up in an age where every conversation is amplified by some electronic device. Many courtrooms lack those devices, so you have to crank your own, personal volume up.
- Fill in the blanks. Never present a judgment or property settlement to the judge with blanks that are not filled in. It wastes everyone’s time, causes confusion, and makes you appear to be unprepared. See UCCR 2.06.
- If your case settles, tell somebody. If your case settles, or is rescheduled by agreement, or otherwise is not to be presented for some appropriate reason, notify the court administrator or chancery clerk, or the judge in advance. What would your reaction be if you drove 25, or 50, or 70 miles, only to learn that the trip was entirely unnecessary? What would be the reaction of someone who did that who had the power to hold you in contempt for it? See UCCR 3.12.
I could go on, but I hope you get the picture. Most of you do. Most lawyers, even new ones, grasp the idea of decorum and its importance to court proceedings. It’s a component of professionalism for the practitioner. It’s an element of preserving respect for the court.
October 30, 2013 § 2 Comments
A young lawyer told me a couple of weeks ago that a woman called her and asked what was the age when a child was no longer entitled to child support. “Twenty-one” was the lawyer’s reply. To which the caller responded, “No, you’re wrong; it’s 23.”
No matter how firmly convinced she was, the caller was firmly wrong, so far as Mississippi law is concerned. Emancipation for all purposes occurs at age 21, unless the parents contracted to support the child to a later age.
In Archie v. Archie, decided by the COA on October 15, 2013, Amos Archie was ordered by the court to pay child support, health insurance, and college expenses for two children, both of whom were over the age of 21. In reversing, the COA, by Judge Barnes, said this:
¶14. A parent has no statutory or common-law duty to support a child who has reached the age of majority. See Hays v. Alexander, 114 So. 3d 704, 707 (¶12) (Miss. 2013). “Legally, a parent is relieved of the duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.” Meek v. Warren, 726 So. 2d 1292, 1293 (¶2) (Miss. Ct. App. 1998) (citing Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989)).
¶15. Under Mississippi Code Annotated sections 93-5-23 and 93-11-65 (Supp. 2012), a chancellor may make a determination that a child has become emancipated when the child has reached twenty-one years of age. If such a determination is made, then “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss. Code Ann. § 93-5-23. Furthermore, the Mississippi Supreme Court held that:
In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (i.e., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by [Mississippi Code Annotated s]ection 93-5-23 for a parent to support [a] child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.
Hays, 114 So. 3d at 709 (¶14) (Miss. 2013) (internal citations and emphasis omitted).
As for the order to maintain health insurance:
¶17. We also find that the order for Amos “to maintain in full force and effect health and life insurance for the children” is erroneous. The supreme court has noted that “[i]nsurance coverage for the benefit of children in divorce cases is an issue of child support.” Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss. 1997) (citing Brennan v. Brennan, 638 So. 2d 1320, 1325 (Miss. 1994)). Absent compelling reasons, such as the mental or physical incapacitation of a child, the obligation of a parent ordered to maintain insurance for the benefit of a minor child ceases when the child reaches majority. Id.
And, finally, with regard to the college education support order:
¶18. Lastly, the chancellor ordered Amos “to pay one-half (50%) of all college expenses for both children, Brittney and [Corey].” The supreme court has stated:
[I]f the [college education] benefit is awarded as child support, that right terminates when the child becomes emancipated[,] . . . but if it is awarded as an adjustment of the rights between the parties to the divorce as to who shall share or pay what portion of the expense of a college education, then the right vests and does not terminate although the child does not enjoy that benefit until he may have passed the age of 21.
Stokes v. Maris, 596 So. 2d 879, 881 (Miss. 1992); see also Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993) (finding that a parent was contractually bound by an agreement to provide “post-emancipation support in the form of college and other expenses”). However, while contractual agreements to provide post-emancipation support during a child’s college attendance are enforceable, there is no such agreement in the present case. Thus, we find that the chancellor erred in ordering Amos to pay for college expenses for both children. [Footnotes omitted]
What is important to take away from this case is that, since Nichols v. Tedder, the MSSC has consistently hewed to the line that emancipation occurs at age 21, unless adjudicated earlier, and that, in the absence of a contract to the contrary, the benefits of minority can not be extended by a trial court beyond that age. That’s important to bear in mind, no matter how firmly convinced and insistent your client seems to be.
October 29, 2013 § 2 Comments
Every now and then, a lawyer will offer testimony about the testator’s intent, arguing that it is admissible as an exception to the hearsay rule under MRE 802(3), which states:
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. [Emphasis added]
Once that rule is invoked, like a magical incantation, opposing counsel often sits down and docilely allows the floodgates of testimony to open without further objection, freeing a torrent of testimony that the court must process in its final opinion.
Consider, however, that before the court can hear all those statements of memory or belief, you have to ask yourself whether this parol evidence is admissible in the first place — regardless whether it is or is not hearsay?
In Estate of Black v. Clark, decided by the COA on October 8, 2013, the COA said:
¶5. If the language of a will only allows one interpretation as to how the testator’s property is distributed, the will is unambiguous, and courts may not consider parol evidence to determine the intent of the testator. Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978) (citing Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975)). Parol evidence may only be considered if the language of the will itself can be construed to result in more than one interpretation as to the disposition of property. Seal, 312 So. 2d at 21.
So before MRE 803 is invoked and parol testimony is allowed, it must be established that the will is ambiguous.
The fact that the parties disagree as to a document’s meaning does not make it ambiguous as a matter of law. Ivison v. Ivison, 762 So.2d 329, 335 (Miss. 2000). In determining the meaning of a writing, the court must employ an objective standard rather than taking into consideration the subjective intent or a party’s belief. Palmere v. Curtis, 789 So.2d 126, 131 (Miss. App. 2001).
The process of contract interpretation adds some insight. In the case of Williams v. Williams, 37 So.3d 1196, 1200 (Miss. App. 2009), that process was set out as follows:
“We have delineated a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss. 1990). First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. Id. at 352. When the language of the contract is clear and unambiguous, we must effectuate the parties’ intent. Id. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’ intent remains uncertain, we may employ canons of contract construction. Id. at 352-353 (citing numerous cases delineating various canons of contract construction employed in Mississippi). Finally, we may consider parol or extrinsic evidence if necessary. Id. at 353″ [West v. West, 891 So.2d 203, 210 (Miss. 2004)]
October 28, 2013 § Leave a comment
As war drags on in the Far East, there is a growing number of veterans who have earned entitlement to educational benefits under the Post-9/11 Veterans Educational Assistance Act of 2008, known as the “Post-9/11 GI Bill,” codified at 38 USC § 3301, et seq.
The law grants active-duty veterans payment of college tuition, fees, books, and a monthly housing allowance. Those benefits may be transferred to a family member. The law includes the language, however, that:
” … Entitlements transferred … may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 USC § 3319(f)(3).
George Neville and his former wife, Tina Blitz, were confronted with how to divide Post-9/11 benefits in connection with the college education of their daughter, Joyce. George was eligible for Post-9/11benefits, and he decided to transfer them to Joyce.
George wanted Joyce to attend SMU so as to maximize her Post-9/11 benefits. Tina wanted Joyce to attend a state-supported school in Mississippi so as to qualify for in-state tuition. Joyce chose SMU, and she and George agreed that she would bank the $1,200 monthly housing stipend to use after her entitlement to Post-9/11 benefits expired, presumably when she reached age 21. For her share, Joyce began paying the equivalent of the expenses at a state-supported school.
George filed a petition to modify the parties’ divorce judgment. His position at trial was that he wanted Tina to pay all expenses not covered by the GI Bill, which he estimated to be around $19,000 a semester.
The chancellor modified the judgment to provide that George was entitled to full credit for tuition, fees, and books, but that the $1,200 housing benefit would be taken off the top, and not credited to him. George appealed, complaining that the chancellor’s ruling was a division of benefits contrary to the statute.
In a case of first impression, the MSSC in Neville v. Blitz, rendered September 26, 2013, reversed the trial court’s ruling. The opinion by Justice Coleman, explained:
¶9. We previously have considered distribution of military disability benefits and military retirement pay in domestic relations cases. See Mallard v. Burkart, 95 So. 3d 1264, 1272 (¶ 21) (Miss. 2012); Rennie v. Rennie, 718 So. 2d 1091, 1095 (¶ 13) (Miss. 1998); Hemsley v. Hemsley, 639 So. 2d 909, 913 (Miss. 1994); Newman v. Newman, 558 So. 2d 821, 823 (Miss. 1990). But those cases dealt with the application of other federal laws pertaining to military benefits, such as the Uniformed Services Former Spouses’ Protection Act, not the Post-9/11 GI Bill. The instant issue is one of first impression for the Court, and we have not found any cases from any jurisdiction directly addressing the specific issue at hand.
¶10. In the instant case, the chancellor held that Joyce’s college expenses should be reduced by her scholarships and the $1,200 monthly housing stipend; then Tina and George were to split the remaining amount equally, with George taking full credit for all Post-9/11 GI Bill benefits except the housing stipend. George asserts that the chancellor’s treatment of the monthly housing stipend violated Section 3319, which provides that benefits transferred to a spouse or child “may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S.C. § 3319(f)(3) (2011). Tina maintains that the prohibition on treating transferred benefits as marital property is inapplicable, because the chancellor did not classify the stipend as marital property; thus, she maintains that the chancellor’s decision did not constitute a division of the benefits. Tina also argues that, because George transferred the benefits to Joyce, the benefits belong to Joyce much like her scholarships; therefore, Tina asserts that taking the benefits off the top before dividing the remainder between the parents was appropriate.
¶11. George earned the benefits at issue here long after the parties divorced, and neither party claims that the benefits are marital property. We agree that George’s Post-9/11 GI Bill benefits were not marital property because they were not earned during the marriage; thus, they were not subject to division. See Wheat v. Wheat, 37 So. 3d 632, 637 (¶¶ 14-15) (Miss. 2010); Hemsley, 639 So. 2d at 915 (Miss. 1994). While the chancellor did not label the benefits as marital property, his instruction to take the benefits off the top of Joyce’s expenses gave Tina a credit that she otherwise would not have had and resulted in George not getting full credit for all of the Post-9/11 GI Bill benefits. We find that the chancellor’s decision effectively acted as a “division” of the benefits. Although the proceeding was not an original divorce proceeding, it was a “civil proceeding” pertaining to modification of a divorce decree. Therefore, we conclude that the chancellor’s allocation of the housing stipend amounted to a division of the benefits in a civil proceeding, which is prohibited by Section 3319(f)(3).
¶12. Tina’s argument that the GI Bill benefits belonged to Joyce lacks merit. When benefits are transferred, the service member has the option to revoke the transfer at anytime. 38 U.S.C. § 3319(f)(2) (2011). Thus, the service member remains in control of the transferred benefits, and they still belong to him. The chancellor held that George was entitled to credit for the rest of the benefits – the payments for tuition, fees, and books – but the $1,200 monthly stipend was taken off the top of the expenses and not credited to George. All of the benefits should be treated equally. Because the GI Bill benefits still belong to George, he should be credited with all of them, and none of the benefits should be divided between George and Tina.
The case was remanded to the chancery court.
The chancellor in this case did exactly what I think most chancellors would have done; that is, to credit George with the actual benefit of his entitlement that was being applied for the child during her minority, and splitting the remaining unpaid expenses between the two parents.
The wild card in this case, however, was the GI Bill, which includes express language against dividing the benefits. In this scenario, the MSSC found that the chancellor had, indeed, divided the benefits by force of his ruling, against the language of the statute.
This would seem to be a more frequently encountered fact situation as greater numbers of active-duty veterans pass through our courts in domestic relations actions. The Post-9/11 GI Bill is a law with which you need to become familiar.
October 25, 2013 § Leave a comment
Judges’ Meeting today.
October 24, 2013 § Leave a comment
Judges’ Meeting today.
October 23, 2013 § 3 Comments
As we’ve seen over the past several weeks, the jurisprudence of equity developed radically apart from the law. It looked past forms to substance, beyond rigid concepts to a more fluid approach to affording relief. It sought to make whole those who were wronged.
Mississippi long adhered to the principle that the lines of demarcation between law and equity jurisdiction should be preserved. See, e.g., Cotton States Life Ins. Co. v. Cunningham, 141 Miss. 474, 482, 106 So. 766 (1926).
Those lines were kept clear and distinct from the earliest days of statehood through two, separate sets of procedures, one for chancery court and another for circuit court. Each set of procedures addressed the unique needs and approaches of the different courts.
Since the MRCP, however, our procedures have become more alike. In fact, except notice of R81 matters, practice is procedurally the same in both courts.
With the advent of the MRCP, in my opinion, the line of demarcation between the courts has become increasingly blurred. It seems that the concept that equity follows the law has been elevated to a principle that somehow equity is inferior to the law, or that it should be constrained by the same strict forms and conventions that limit the law courts.
That’s unfortunate because there is a need for flexibility and ability to do substantial justice in our court system, as equity has been doing for many centuries.
So the point I’m getting at is this: when you are pressing a point in chancery, don’t overlook using the maxims themselves as persuasive authority. They are a part of our law of equity just as is every MSSC and COA ruling arising from chancery appeals. They are good law.
Maybe if more lawyers would throw the maxims into their trial arguments and appellate briefs, it would reawaken an awareness of the great equity principles in our jurisprudence. And by doing so, perhaps we will return to the core idea of the great difference in approach between the two courts, and the validity of preserving the difference.
As Judge Griffith said:
… there is not to be forgotten the obligation of equity judges to firmly retain the jurisdiction which the court of chancery definitely possesses, not only because a vast experience has justified the propriety and better efficiency of it, but because of a reason already elsewhere touched upon; that two courts, one more largely of the people and the other solely of a judge, existing and in operation side by side, each within its own sphere, tend to keep the course of justice directed the more upon an even keel and better along a middle, a deeper and a truer channel. Griffith, § 26, p. 28.
What is the future of equity and chancery courts as we plunge deeper into the 21st century and move toward the second 100-years of our statehood? That’s a matter we’ll explore at a later date.
October 22, 2013 § 1 Comment
“No one should be condemned without a legal chance to be heard.”
This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:
This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.
The MRCP modified process to allow personal service outside the boundaries of the state.
The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.
The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.
October 21, 2013 § 4 Comments
“No person bound to act for another can act for himself.”
This maxim is the essence of the law of fiduciaries that binds executors, administrators, guardians, conservators, and all persons charged by the court to carry out some responsibility for the benefit of another. No self-dealing.
Here is how Judge Griffith said it (with paragraphing added):
This is a principle as old as the first among laws, and it has an especially wide application in the processes and proceedings in chancery as a court of conscience. Under it, for instance, no next friend, no guardian, no guardian ad litem, and no commissioner of the court can purchase at any sale wherein there is being sold any property of his ward or any of those for whom he has a duty to perform in the cause.
The disability and disqualification imposed by the maxim runs through all the procedure and includes trustees, fiduciaries, and in a large measure all those in confidential relations, so that no officer, agent or fiduciary shall be permitted in any respect to have such connection or acquire any such interest as may come in conflict with those for whom in any substantial respect he is or may be required to act as to any portion of the matter at hand. Griffith, ¶ 47, pp. 49-50.
The principle behind this maxim is so ingrained in the law of our state that it can be found in dozens of cases. Our law will not tolerate anyone in a fiduciary or confidential relationship profiting at the expense of the beneficiary.
October 18, 2013 § 2 Comments
The pop singer Rihanna recently stirred up a lot of commotion when she posed for this picture with a loris in Thailand …
The loris — more exactly, a “slow loris” — is the creature perched on the lady’s right shoulder. Rihanna, for those of you who, like I, are abysmally ignorant of pop culture, is the lady doing the self-pic with a creature perched on her right shoulder.
A loris is a primate — some species of which are threatened, and all are protected — that lives in the rain forests of Southeast Asia. Despite some of their less attractive attributes, which include having a venomous bite (the only primate with such a skill, except for some lawyers) and inability of the young to clean themselves of fecal and other noisome matter, the cuddly little critters are in high demand as “living toys” due to their slow, deliberate movements, expressive eyes, soft fur, and docile behavior when handled.
The only natural predators of lorises, other than snakes, orangutans, and some raptors, are humans who hunt them illegally for their pethood. Poachers snatch baby lorises from the wild, killing their mothers to take the young. The young lorises then have their teeth pulled out with pliers or other implements, not only to make them more appealing to pet owners, but also, and most importantly, less likely to deliver a poisonous bite. Infections from the pulled teeth kill many of the captive baby animals. Since the lorises are not able to breed in captivity, the poachers have to take the young creatures to meet demand, which is considerable.
There are all sorts of international treaties and laws and federal statutes that ban the importation of lorises and other animals into the US. But if, somehow, one found its way into the Magnolia State, what would its legal status be under state law? Mississippi is, after all, a fairly laissez faire jurisdiction when it comes to many of people’s personal preferences in such matters.
Well, turns out that Mississippi, like most states, does regulate some animals, primates included, as you can divine from this quasi-helpful map:
Mississippi regulates “Animals inherently dangerous to humans,” and makes it illegal to import, transfer, sell, purchase or possess them, except by permit or exception (e.g., zoos, transient circuses, research facilities, et al.). MCA 49-8-5, 49-8-7.
The loris, however, is not included among the proscribed creatures. Among the primates covered by Mississippi law are gibbons, orangutans, chimpanzees, siamangs, gorillas, macaques, mandrills, drills, baboons, and Gelada baboons. No loris. Not even a slow loris.
FYI, also restricted in our fair state are: wolves, jackals, dingoes, wolf-cross-breeds, maned wolves, red dogs, African hunting dogs, bears, wolverines, hyenas, lions, tigers, jaguars, leopards, snow leopards, cheetahs, cougars, elephants, hippopotami, and African buffalo.
Caveat: Do not confuse the loris with the lorax, although both creatures are closely related to environmental and conservational concerns. The lorax was exhaustively researched by Theodor Geisel, and was found to be benign, non-venomous (except perhaps to the logging industry), and free of disgusting habits. Oh, and the lorax is not an “animal inherently dangerous to humans” under Mississippi law.