November 18, 2013 § 1 Comment
I’ve whined here before about inadequate proof of values in equitable didtsribution cases and the burden it places on the trial judge. I won’t repeat my plaints here.
The latest case where a chancellor had to make a decision with far-less-than-precise proof of values is Williams v. Williams, decided by the COA on October 5, 2013.
Phillip and Gail Williams were before the court in a divorce where the main matter in dispute was equitable distribution. Neither party produced an appraisal of a residence and real property in Alabama. Instead …
- Phillip introduced a document styled “An Acknowledgment of Lease Purchase Agreement” by which Phillip purported to sell the property to a purchaser for installment payments of $325 a month until he could “obtain a loan to pay off the balance of $40,000 … less the $325 a month without interest …” The document was filed among the land records in Alabama. In his testimony, Phillip stated that the purchaser would, indeed, be paying more than $50,000 for the property.
- Gail introduced a tax receipt showing that the property was valued for tax purposes at $61,100, with $43,900 attributed to the house, and the remainder to the underlying property.
Also included in the adjudication were the parties’ householdd goods, yard equipment, and tools, the values of which were in dispute between the parties, and for which there was no appraisal. Each party accused the other of undervaluing the items that he or she would keep, while overvaluing the items that the other would receive.
The chancellor averaged Phillip’s claimed $40,000 value with Gail’s tax receipt value of $61,110, and adjudged the value of the Alabama property at $50,550. She also averaged the parties’ valuations of the personalty.
Phillip appealed, complaining that the chancellor was in error in averaging the values.
Judge Fair, for the COA, addressed the issue this way:
¶31. In McKnight v. McKnight, 951 So. 2d 594 (Miss. App. Ct. 2007), we held that the averaging of proposed appraisals was allowed in valuation of marital realty. Even more recently we held chancellors are required only to do the best they can with what is introduced into evidence before them:
[T]he chancellor cannot be blamed for the failure of the parties to present evidence of valuation. Faced with similar circumstances, this Court held as follows in Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999):
[T]he chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.
It was not the chancellor’s duty to obtain appraisals of the marital property. Willie cannot now complain that the chancellor’s valuations are unfair when no reliable evidence of the value of the property was presented at trial. This issue is without merit. Common v. Common, 42 So. 3d 59, 63 (¶¶12-13) (Miss. Ct. App. 2010).
¶32. We find the chancellor’s averaging of valuations provided on Rule 8.05 forms submitted in the record and discussed on the record an acceptable course of action and within her discretion.
¶33. Overall, we find Phillip’s objections to the characterization, valuation, and division of marital property to be based on the evidence and within her discretion under Hemsley, Ferguson, and their progeny.
I get it that in some cases the cost of obtaining appraisals can seem disproportionate to the advantage to be gained. And there are some cases where one side, if not both, would prefer for the proof to be fuzzy in hopes that the chancellor will fall their particular way.
When you leave it up to the trial judge to resolve inconclusive or incomplete evidence, you get what you get. As long as the chancellor “explored the available proof and arrived at the best conclusions that he could,” and did not otherwise abused discretion, you will be stuck with the results.
November 15, 2013 § 7 Comments
The husband of a nurse with whom my wife works experienced some symptoms, so he visited with a physician not long ago. He learned that he had advanced colon cancer, and the doctor estimated that he had six months to live. He died last week, only a month after the diagnosis.
That may be an extreme case, but it highlights something of which we all need to be aware — that undetected cancers can, and will, kill you, most likely at a point in your life when you feel that you should still have some more living to do.
You can chalk up this unfortunate experience to stubborness on the man’s part, if you like. I prefer to think he was dissuaded from having a colonoscopy by all the lurid tales that folks swap around the office and the courthouse about the procedure and its unpleasantness. In my own experience, the urban legends I heard had a dissuasive effect on me. When I finally did undergo it, however, I found how wildly exagerrated and inaccurate those reports really were.
So as a public service, I am going to tell you in some detail my experience with it, stripped of the drama (there wasn’t any), and in hopes that you will be reassured that this is something you can and should do. Fair warning: bodily functions will be mentioned here, but I will try to be matter-of-fact.
When you schedule your colonoscopy, the doctor will give you a detailed instruction sheet. The instructions are straightforward and easy to follow. Here is what happens, step by step:
- Before you can undergo a colonoscopy, your bowel will need to be empty and cleansed. You will get a prescription for a mixture that you will drink the day before the procedure that will do that function. Fill the prescription and pick up any laxative prescribed by the doctor.
- The day before the procedure, you will stop eating food at a time directed by the doctor. From that point on, you will drink only “clear” liquids, which includes water, cola, stocks, and the like. Prepare the prescribed mixture according to the directions, put it in the refrigerator, and go to work or wherever you’re headed for the day.
- Around 5 pm on the evening before, you will take a dose of laxative, which will begin the process. Soon after, you will consume one-third of the refrigerated mixture. The alleged taste and consistency of this emulsion is the epic source of many a dramatic tale of woe about the process. The truth is somewhat more mundane. The mixture has a slightly salty-citrusy taste and, if it is properly mixed, is smooth and fairly clear and not, as the legend has it, nuclear green, gritty, foul-tasting, or resembling eye of newt. It is admittedly not intended to be savored like a cocktail, but it’s not indigestible or repulsive, either.
- Soon after consuming your first course of the mixture, the bowel movements will begin, and will continue for the next few hours. You will keep consuming “clear” liquids along the way to keep your electrolyte balance straight, and to keep from getting dehydrated.
- After a couple of hours, you will drink another one-third of the mixture, and continue with the “clear” liquids. The colon-cleansing will continue.
- Finally, after another couple of hours, you will drink down the last one-third, and continue as before until the urge to go ends, at which point you will retire to bed, happy to be through with this phase.
On the morning of the procedure, you report to the hospital or facility, accompanied by someone who will be able to transport you home when it is over. Still nothing other than those “clear” liquids this morning. You are ushered into a room where you doff your clothes and don one of those ridiculous hospital gowns. An IV live is installed.
You are then wheeled to the procedure room. The doctor enters and explains the procedure. In a few minutes, Versid is injected into the IV line, and you are immediately in a sound sleep.
After an hour or so, you wake up to find the doctor sitting there with a report that either (a) everything is fine, or (b) something has to be sent to the lab to be checked out, or (c) there is a problem, and here’s what needs to be done about it. And then you are free to go, to be transported home by your driver so you can sleep off the Versid.
That’s it. You never feel a thing. No side-effects or after-effects, no hilarious episodes, no humiliating embarrassment, no drama, nothing other than what could be for you a life-saving experience. The doctors and nurses are professional and reassuring. They do this every day. It’s not funny or tittilating to them.
An upper GI scope is even simpler, since it does not involve all of the bowel-cleansing preparations.
Lawyers (and judges, for that matter) can be notoriously resistant to what they see as outside interference with their own self-determination. We pride ourselves on our independence, so we bridle when someone tells us that we should do this or that for our own good. But, I am telling you, this is something you really should do for your own good. If you don’t care anything about your own good, then do it for the good of your spouse or significant other, or your children, or your grandchildren.
As a person who absolutely detests putting myself in the control of doctors, I can testify that this procedure is not as bad as rumored around the water cooler.
Don’t wait until you have symptoms. Get a scope. Now.
November 14, 2013 § Leave a comment
Two recent cases, both decided by the COA on October 22, 2013, upheld chancellors’ rulings that decedents’ actions were not the product of undue influence.
In Wheeler v. Wheeler, the court upheld a chancellors’ decision that, although the decedent and his brother had a confidential relationship, the will and deeds in favor of the brother were not the product of undue influence so that they should be set aside.
And in Estate of Mace: Colbert v. Gardner, the court affirmed the chancellor’s refusal to set aside a will based on undue influence. The court also rejected the plaintiff’s claim that the decedent lacked testamentary capacity.
We’ve talked here before about the onerous burden that the plaintiff bears to convince the trial court that a will, deed, or other instrument should be set aside for undue influence. We also talked about the proof necessary to prove lack of testamentary capacity.
The law sets a high bar for those who are seeking to set aside instruments. If you are approached by a prospective client, even one with a fistful of dollars to finance litigation, you should make sure that the proof rises to the level that would justify the relief you are seeking.
You can read these recent cases and draw your own conclusions.
November 13, 2013 § 5 Comments
The newest appeal to be interred in the MRCP 54(b) graveyard is In re Heirship of Gardner: Young, et al v. Pollion, et al., decided by the COA on November 5, 2013.
The petitioners sought to reopen the estate of Albert Gardner, who died in 1924, to determine his heirs. At stake were claims of the petitioners to oil, gas, and mineral royalties. The claimants were putative children of Albert Clayborne, a descendent of Albert Gardner, who died in 1998 with no adjudication of his heirship until the instant action.
The chancellor heard proof and rendered a 50-page opinion adjudicating certain persons to be heirs, and denying claims of others.
Here’s what Judge Fair’s opinion said on this now-utterly-familiar topic:
¶8. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). But the judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. And absent a Rule 54(b) certification, any judgment – regardless of how designated – is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id.; see also M.R.C.P. 54(b) cmt.
¶9. Rule 54(b) does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. “Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. Here, the chancellor did not indicate that the order was a final judgment or provide any Rule 54(b) certification. The fifty-page order contains many gaps regarding Albert Gardner’s descendants and their spouses, as recognized by the chancellor:
IT IS, FURTHER, ORDERED AND ADJUDGED that the aforementioned determination of heirs are subject to any spouse who survived said heirs who was not made a party to this litigation.
Whether Albert Clayborne’s mother and his grandfather survived their spouses is undetermined in the order. Further, the record shows that the order appealed from has been amended since the Appellants filed their appeal with this Court. We therefore conclude that these heirship proceedings are not final, even as to the Appellants, as they are still subject to further changes and amendments.
¶10. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So. 2d 772, 774 (¶8) (Miss. 1999). Further, the Appellants neither sought nor received permission under Rule 5 of the Mississippi Rules of Appellate Procedure to proceed with an interlocutory appeal of this nonfinal judgment. An appellate court, on its own initiative, may dismiss an appeal for the absence of a Rule 54(b) certification. Miller v. R.B. Wall Oil, Co., Inc., 850 So. 2d 101, 103 (¶5) (Miss. Ct. App. 2002). Therefore, we dismiss for lack of jurisdiction.
R.I.P. yet another appeal.
Every time I see one of these cases, I think that I am seeing the very last in a long line of dead appeals. Yet, the supply appears to be unendless. We need a bigger graveyard.
November 12, 2013 § 5 Comments
We visited the COA case of Sanford v. Sanford here, back in May of 2012. Sanford is a case where the chancellor allowed the parties to dictate a settlement agreement into the record, accepted it as a final settlement of all issues, and granted an irreconcilable differences divorce.
The COA, in a case I described as a “Shortcut to Failure,” reversed, finding that, since there was no written agreement as required by the statute, the divorce had to be set aside.
But, lo, the MSSC granted cert in the case and took it into its bosom, where it has reposed since, piquing speculation that, perhaps, the Supremes were prepared to take a different tack. After all, if the high court intended to leave the COA decision undisturbed, why grant cert, right?
The speculation grows out of the outlier case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), which did approve a chancellor’s grant of a divorce based on an announced settlement in open court, without a separate, written agreement. The case goes against a long line of holdings to the contrary, including the most recent, Reno v. Reno, which we posted about here.
So, the COA had reversed Sanford, holding that a written agreement is a sine qua non for an ID divorce. On cert, surely the MSSC pointed a new direction, didn’t they?
Well, in a word: no.
In Sanford v. Sanford, rendered October 31, 2013, penned by Justice Pierce, the high court affirmed the COA, saying that, “Because the requirements of neither [MCA] Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the judgment of the Court of Appeals, reverse the judgment of the Chancery Court of Lamar County, and remand the case for further proceedings consistent with this opinion.”
That would appear to put the final, end-stop punctuation to the procedure in which the assembled parties and lawyers try to announce a settlement on the record to obtain an irreconcilable differences divorce. No written agreement = no ID divorce. No written consent = no ID divorce. It’s that simple.
This would also seem to be the last gasp of Bougard.
November 11, 2013 § Leave a comment
State Holiday. Courthouse closed.
November 8, 2013 § Leave a comment
“Not to know what happened before you were born is to remain forever a child.” — Cicero
“If you don’t know history, it’s as if you were born yesterday. If you were born yesterday, then any leader can tell you anything.” — Howard Zinn
“I don’t know much about history, and I wouldn’t give a nickel for all the history in the world. It means nothing to me. History is more or less bunk. It’s tradition. We don’t want tradition. We want to live in the present and the only history that is worth a tinker’s damn is the history we make today.” — Henry Ford
November 7, 2013 § 5 Comments
Phillip Thomas has an excellent post on his blog about judges and how they are perceived by lawyers who come before them. Although it is framed in the context of the epic Eaton v. Frisby litigation, there is truth there for every lawyer who ever has to deal with a judge, which would be an overwhelming percentage, I am sure.
Most often, in my experience, lawyers view judges based on memorable experiences, good or bad, and not on the judge’s total body of work. For instance, the judge who yells at you for wasting an afternoon on a meaningless motion is perceived quite differently from the judge who kindly calls you into chambers and points out that, in the future, you should not waste everyone’s time. Those are what sticks in the mind, not the whole history of mundane, routine matters that the judge handles by the dozens day by day.
As Mr. Thomas points out, some lawyers become dark conspiracy theorists about judges. They see a personal animus in every adverse ruling. They attribute bad results to the judge’s dislike for where the lawyer or client came from, or the color of suit he wore, or that the judge hates lawyers who represent certain kinds of clients.
The thing about judges is that we are just like you, with our own personality quirks, points of view, ways of approaching things, likes and dislikes, patience and impatience, and on and on. Each judge has to make a decision based on the law and the facts, no matter how well or poorly presented, no matter how thorough or slapdash the job done by the lawyers, no matter whether either lawyer bothered to come equipped with some authority for a decision. Faced with that smorgasbord of factors, some judges react like Saint Francis, and some like Jack the Ripper.
It’s true that some judges are more energetic than others, some are more intelligent than others, and some are more persnickety than others. But what has impressed me since I took the bench is that all judges — within those parameters, and within the sphere of their own personalities — are dedicated to getting it right.
We don’t always get it right, though. Judges are not perfect, and we are not required to be. That’s why we have appellate courts.
November 6, 2013 § 2 Comments
We’ve talked here before about the concept that the trial court loses jurisdiction during an appeal to amend, modify or even reconsider its judgment.
That rule, however, is not absolute.
In the case of McNeese v. Grant, decided by the MSSC on October 10, 2013, the appellate court was called upon to decide whether the chancellor had erred when he ruled that a R60(b) motion was untimely filed, and that the trial court had no jurisdiction, because the movant, Kenton McNeese, had perfected an appeal from the judgment that was the subject of the motion. Here’s what the MSSC said in its opinion written by Chief Justice Waller:
¶7. Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 460 (Miss. 2009) (citations omitted). However, Kenton requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure.
¶8. This Court has explained that “the adoption of Miss. R. Civ. P. 60 conferred ‘limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected.’” Griffin v. Armana, 679 So. 2d 1049, 1050 (Miss. 1996) (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1347 (Miss. 1989) (citation omitted)). Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). “So long as [Kenton] complied with the requirements of Rule 60(b), perfection of his appeal did not divest the trial judge of authority to vacate [his] judgment.” Griffin, 679 So. 2d at 1050. A party may file his Rule 60(b) motion directly with the trial court not more than six months after the judgment[;] however, once “the record has been transmitted to the appellate court and the action remains pending therein,” leave to make the motion must be obtained from the appellate court. M.R.C.P. 60(b).
The judge had ruled that Kenton’s motion was untimely filed, based on the language of MRAP 4(d), which reads, in part:
If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part hereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions. [Emphasis added]
The italicized language would seem to impose a 10-day limitation on the filling of the motion, as the chancellor ruled. The Supreme Court, however, disagreed, saying at ¶9, “This Court finds that Rule 4(d) applies to the suspension of the deadline by which to file a Notice of Appeal and does not create a deadline by which to file a Rule 60(b) motion.”
I recommend that you read the opinion, because there are some other aspects of interest in this pro se appeal. If you handle any appeals, you need to be familiar with this case.
This is, by the way, Kenton’s second pro se appeal. You can read about his first effort here.
November 5, 2013 § 2 Comments
Can a father be ordered to buy a car as part of educational (college) expenses for his child? And what exactly is the relationship between college education support and regular child support?
Those were the two essential questions before the court in the case of Brooks v. Fields, decided by the COA October 15, 2013.
Ronald Brooks was adjudged to be the natural father of a daughter, Canary DashSherrel Brooks, born to Janice Fields. The parties agreed to an amount of child support and to split Canary’s medical expenses between them.
Janice later filed a petition to modify child support for the child, who apparently was approaching college age. At the time, Ronald was an unemployed veteran living with his mother. He reported income of $2,700 a month but conceded that his income would increase once his Social Security Disability claim was approved, and he also had recently received $25,000 in lump-sum VA benefits. Canary was receiving $936 a month in VA benefits through her father, and an additional $678 in SS benefits. Ronald claimed net monthly income of $900 a month after payment of all of his living expenses.
The chancellor ordered Ronald to pay $15,000 in a lump sum within 90 days to purchase a vehicle for Canary’s transportation to and from college. He also ordered Ronald to pay the cost of insuring the car. Ronald and Janice were each ordered to pay one-half of the cost of college after grants, etc.
Ronald appealed. He argued that it was error for the chancellor to order him to pay for a vehicle that was beyond his financial means, and that the court’s ruling did not take into account the statutory child support guidelines or the VA and SS benefits that Canary was already receiving.
In its decision, authored by Judge Griffis, the COA spelled out the law of support for college-age children:
¶12. Mississippi law provides that parents can be required to pay reasonable expenses associated with a child’s college education, where the child shows an aptitude for college. Pass v. Pass, 238 Miss. 449, 455, 118 So. 2d 769, 771 (1960). This Court has held that automobile expenses may be awarded as part of college expenses. Striebeck v. Striebeck, 911 So. 2d 628, 637-38 (¶¶36, 41) (Miss. Ct. App. 2005). Specifically, the supreme court has upheld a chancellor’s order for a parent to purchase a vehicle as part of a minor child’s educational expenses, and held that “[t]hough an automobile is not an expense which every parent can provide his/her child, it is not an abuse of a chancellor’s discretion to require a parent to purchase a vehicle where warranted by the circumstances in a particular case.” Chesney v. Chesney, 910 So. 2d 1057, 1065 (¶25) (Miss. 2005).
¶13. The supreme court has also held that it is the responsibility of parents, not the child, to provide funds for education, even if the child has an independent source of funds. Saliba v. Saliba, 753 So. 2d 1095, 1099 (¶13) (Miss. 2000). Payments for college-education expenses, however, do not qualify toward statutory child support, nor will they render child support otherwise within the statutory guidelines to exceed the guideline amount, because “they do not diminish the child’s need for food, clothing[,] and shelter.” Cossey v. Cossey, 22 So. 3d 353, 358 (¶20) (Miss. Ct. App. 2009) (citations omitted).
That bold language is important. I think most chancellors take the position that the college support and child support need to be considered all together, based on the child’s needs and the parents’ resources.
So, what should the trial court consider in determining what is reasonable for a parent to pay? Judge Griffis’s opinion continues:
¶14. Mississippi law, however, limits the parental requirement for payment of educational expenses. The supreme court has determined that a child, if the father is financially able, is entitled to attend college in accord with her family standards. Wray v. Langston, 380 So. 2d 1262, 1264 (Miss.1980) (emphasis added). Mississippi Code Annotated section 93-11-65(2) (Supp. 2012) provides “that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The supreme court has interpreted this statute to authorize the chancellor to hold parents liable for educational expenses commensurate with the parents’ station in life; and the parents are not obligated to provide such support if it is beyond their station in life. Saliba, 753 So. 2d at 1103 (¶27) (citation omitted).
¶15. Here, the chancellor clearly had the discretion to require both Brooks and Fields to contribute to Canary’s college-education expenses, which included the vehicle purchase, without consideration of the monthly benefits Canary received and in addition to the statutory support. However, we find that the chancellor abused his discretion when he required Brooks to pay a $15,000 lump sum toward the purchase of a vehicle for Canary. The evidence does not support this decision.
¶16. Brooks’s financial statement indicated that he had $900 in disposable monthly income. Even though his disposable income was soon to increase based on additional disability benefits he was to receive, he was still a disabled veteran on a fixed income. Indeed, a lumpsum payment of $15,000 for the purchase of a vehicle was hardly commensurate with his station in life. There was simply no evidence that Brooks was financially able to pay the cost of the vehicle and the costs of Canary’s other college expenses. Brooks offered to help purchase a vehicle for Canary at a more reasonable price he could afford. The lump-sum payment of $15,000 was well beyond Brooks’s financial means.
¶17. The chancellor relied on the $25,000 lump-sum back payment Brooks received from his Veterans Administration benefits when he ordered Brooks to make the lump-sum payment. There was evidence that Brooks had spent $9,900 of that money for the cash purchase of two vehicles, which would presumably leave him $15,100 in disposable income. However, there was no evidence that Brooks had any of this disposable income or cash on hand at the time the chancellor ordered the payment. Thus, we find that the chancellor’s decision to order Brooks to pay the $15,000 lump sum for the vehicle purchase was not supported by substantial credible evidence in the record. Thus, the chancellor was not within his discretion to award a lump-sump payment of $15,000 to Fields for the purchase of a vehicle for Canary. Therefore, as to this award, we reverse and render the chancellor’s judgment.
The case is a template for how to analyze college support vis a vis child support, and the extent of the parents’ responsibility.
With the reversal, then, the gold mine awarded by the trial court is reduced to a coal mine by the COA.
* Apologies for the title to musicians The Police and Sting.