Trials of the Earth

February 28, 2014 § Leave a comment

Anyone who knows me can tell you that I am an epic history nerd.

So, when Circuit Judge Ashley Hines recently told me about a remarkable memoir of Mississippi Delta life in the 1880’s, I made it my business that very day to find and buy a copy at Square Books in Oxford.

trialsThe book is Trials of the Earth, by Mary Hamilton, who lived from 1866 to 1937. How her papers came to be published is a story in itself.

In 1931, Delta writer Helen Dick Davis and her husband, Reuben, moved to a home that Mr. Davis had built in Phillip, Mississippi, north of Greenwood. Reuben’s younger half-brother married Mary Hamilton’s daughter, Edris, and it was through this family connection that Helen Davis came to know and befriend Mary Hamilton, who lived nearby at the time.

As they whiled away time together, Helen was enthralled by Mary’s tales of a Delta altogether unknown and foreign to Helen’s experiences. The Delta that Helen knew was rich farmland under cultivation, civilized towns, culture and agriculture. The Delta that Mary painted in vivid hues was a nearly impenetrable wilderness of virgin timber and flood-prone bottomlands where people lived in isolation, in peril from sudden floods, storms, panthers, wolves, bears, snakes, and disease. It was a land where one’s very existence had to be wrested from the earth every day. Mere survival came at the cost of bone-wrecking toil.

Helen urged Mary to reduce her memories to writing, but the elderly woman, then in her mid-sixties, at first declined. It was only after she fell ill and had a feverish dream which she interpreted to mean that she should commit her story to paper that she began writing. And write she did. In 1933, she turned over a 150,000-word handwritten manuscript to Helen, who edited it and wrote a preface. She submitted it to Little Brown publishing house, which rejected it.

Before she could submit it to another publisher, however, she got word from Mary not to try any more to publish it. Mary said that her dead husband, Frank, had come to her in a dream and told her that the stories were their “private Valentine,” not for others to read. Helen put the manuscript away.

Helen’s daughter, Carolyn, discovered the manuscript in 1991, and submitted it to the University of Mississippi Press, where JoAnne Morris, wife of Willie Morris, was Senior Editor. Before she married Willie Morris, she had been JoAnne Prichard of Yazoo City, a co-worker of Helen Davis. The book was accepted for publication. It was released in 1992, only a few months after Helen died, and it included a foreword by Mississippian Ellen Douglas.

Mary Hamilton’s heirs filed suit to stop publication and to establish their claim to the rights, and they succeeded on both counts. The book sold out the run published by University Press, and lay un-republished until January, 2013, when it was self-published including the Davis and Douglas additions, and an introduction by Morgan Freeman. The 2013 edition is in paperback, and is available through Nautilus Publishing of Oxford.

As Ellen Douglas points out in her foreword, we have many portrayals of Delta life in the form of slave narratives and tales of upper-class plantation life, but memoirs depicting the everyday struggles of poor whites in the lowlands along the Mississippi River before the land was cleared and put into cultivation are practically non-existent. The story of the poor white settler of that era is what Mary Hamilton gives us.

In eloquent, simple language, Mary’s book tells how she was forced into a marriage to a secretive, mysterious Englishman when she was only 17 years old, and how they embarked on a hard life full of struggles, minor successes, gargantuan failures, births and deaths, dangers, joys and heartaches. They were among the first white people to enter the Mississippi Delta to clear it and make it habitable. Remarkably, all this occurred in only the twenty years or so before the dawn of the twentieth century. The following passage will give you a sense of what they were up against:

… Cane, undergrowth, blackberry briars, grape and poison oak and muscadine vines, all growing to enormous size out of that rich Delta ground, interlaced through that fallen timber so that it was one tangled mat. Not a trail or path through it.

But the whole country was almost as bad. A man couldn’t get through any of the woods without a compass in one hand and a cane axe in the other to blaze every foot of the way. In throwing the timber the men had to cut a path to their tree every morning. then they would estimate the direction they would throw the tree, and each man cut a path to get away in when the tree started to fall, and God help them if they couldn’t outrun the falling tree.

At the end of the book is a holographic transcription of Mary’s writing, demonstrating at once her command of imagery and description, as well as her inadequate spelling, grammar and lack of understanding of punctuation and paragraphing. The editors took care to preserve her plain language, correcting only as needed to render a readable product. Fair warning: the editors also left intact her language describing those of other races, which reflect the attitudes of her day, and not those appropriate to the 21st century.

You don’t have to be a history nerd to be fascinated by this book. It’s a story that oscillates between vibrant adventure and humdrum existence, pretty much like most people’s lives, which is a key reason why it is so approachable and entertaining.    

Refreshing Recollection

February 27, 2014 § 3 Comments

The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.

To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.

It doesn’t have to be so complicated, however.

Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.

Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.

Here are the proper steps:

  1. Establish that the witness is unable to recall a particular thing.
  2. Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
  3. If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
  4. Now the lawyer asks again if the witness now remembers after looking at the writing.
  5. If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
  6. If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.

MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.

The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).

The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.

In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind. 

An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.

Proof of the Valuation Date

February 26, 2014 § 1 Comment

I’ve whined here more times than I can count about how the record is almost always bereft of any testimony from either party in a divorce about what valuation date should be used by the court in assessing values. The date that the chancellor uses can take away or add thousands of dollars to your client’s slice of the marital pie, so it’s a subject that you should approach with some interest.

The valuation date (or demarcation date) is entirely within the discretion of the court, and if you do not put evidence in the record as to which date should be used and why, then you are leaving it strictly up to the chancellor to go with any reasonable date. One of several previous posts where I spelled this out is here.

If I were trying a case with valuations, I would always ask my client what valuation date should be used and why. And remember, that different assets can have different valuation dates. Why? Well, for one thing, it gives you something in the record to argue, as opposed to raising the argument in a vacuum on appeal with nothing in the record to support it. For another, it just might be all the chancellor needs to select the very date that your client designates. And, for yet another, if you don’t put that evidence under the judge’s nose, how in the world do you expect the judge to guess correctly what your client wants?

So how do you pick the best valuation date for your client? Look at how values are fluctuating, if they are, and pick the most advantageous date, then have your client explain to the court why and how that date will produce the most equitable result. If you want inspiration on how to do this, I suggest you study the various appeals where the court has upheld the chancellor’s arbitrary decision on valuation dating. How the chancellor picked a date is one indicator you can use. You can also draw inspiration from the after-the-fact arguments of counsel who left it up to the trial judge. The COA decision in McDevitt v. Smith, handed down November 26, 2013, is a recent example.

Which Post-Trial Motion You Choose Can Make all the Difference

February 25, 2014 § 3 Comments

James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.

On April 16, 2012, Loftin filed a public records request with the school district.

The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.

Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.

On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.

In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:

¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).

¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).

¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).

¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.

Comments:

  • A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
  • A R60 motion does not stop the running of the appeal deadline.
  • Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
  • If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
  • Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.

Family Law CLE: Save the Date

February 24, 2014 § 2 Comments

I am not in the business of promoting products or services, but I do promote the better practice of law. If you do any family law at all, you should make it your business every year to attend Professor Deborah Bell’s Family Law CLE program. I make time for it every year without fail, even though Professor Bell donates her time each Fall to make a presentation to the chancery judges.

Here’s a copy of the notice for this year’s programs:

The 18th Annual Family Law CLE

Professor Deborah Bell, Seminar Leader

This year’s Family Law CLE will be presented on the following dates and locations:

Jackson · Friday, July 18, 2014
Mississippi Sports Hall of Fame and Museum
1152 Lakeland Drive, Exit 98B off I-55

Oxford · Friday, July 25, 2014
Oxford Conference Center, 102 Ed Perry Blvd
Hwy 7N, Sisk Ave Exit

Gulf Coast · Friday, August 1, 2014
Imperial Palace, 850 Bayview Avenue, Biloxi

_______________

Save the dates for this annual 6 hour CLE providing comprehensive overviews of the last year’s family law developments. Includes one hour of ethics credit.

Register online at
http://www.msfamilylaw.com

or send your registration fee ($225) to:

Family Law CLE
(New Address) 426 S Lamar Blvd, Suite 16 Oxford, MS 38673

Make check payable to:
Family Law CLE
fax: 662-234-9266

Carroll Chiles Moore, Conference Coordinator


phone: 662-513-0159
REGISTER NOW, ONLINE! http://msfamilylaw.com/

 

While you’re at it, get yourself and use a copy of Professor Bell’s Bell on Mississippi Family Law. It’s the authoritative reference work for Mississippi family lawyers.

Rocky Springs

February 22, 2014 § 3 Comments

The community of Rocky Springs, in Claiborne County, grew up at the site of natural springs near the Natchez Trace where settlers had first set down roots in 1796. The springs attracted thirsty travelers on the heavily-used Trace.

In 1837, a Methodist church was built on the bluff overlooking the village.

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By 1860, the population of Rocky Springs had grown. Within two and one-half miles of the village center were more than 2,600 people, which number included around 2,000 slaves. Farming occupied most of the community outside the immediate environs of the town. Fifty-eight planters worked the land with slave labor, primarily in cotton, which was the area’s principal economic engine. Within the village there were physicians, merchants, trades, clergy, and even an academy.

General Grant’s invading army in 1863 marched north from its river crossing near Bruinsburg and passed through Rocky Springs on its roundabout march to invest Vicksburg.

The village survived the economic devastation of the Civil War, but traffic on the Natchez Trace had dwindled as the area developed and the wilderness receded. In 1878 the population was slashed by a yellow fever epidemic.

By the 1900’s poor farming practices and severe erosion had crippled the cotton industry, and In the 1920’s the boll weevil infestation essentially ended it in the area.

In the 1930’s the springs dwindled and then dried up completely. The last store closed.

The only surviving structure of the once-thriving community is the Methodist church. It continued active until 2010, when its membership became too small to sustain it, but its doors are still open to visitors. On the chilly day that we dropped in we added our names to the register alongside others from New York, Germany, New Zealand, the UK, and many other places.

Behind the church is its cemetery. Tombstones date from the early-to-mid 1800’s to the present.

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The National Park Service displays a painting purporting to depict what Rocky Springs looked like in its heyday.

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The painting may be fanciful, or it may be an accurate depiction. I can’t say for certain. It does show the land cleared and cultivated, as we know it was, and the cluster of village buildings below the bluff commanded by the Methodist church. Still, it’s hard to square that idyllic portrait with the overgrown, heavily wooded, and deserted contemporary scene.

Today, Rocky Springs is nothing more than an historical stop on the Natchez Trace with an interpretive trail through its site. There is a nearby campground.

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Scene in Mississippi

February 21, 2014 § 11 Comments

Where?

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How Much Life Insurance is Enough? Or Too Much?

February 20, 2014 § 5 Comments

The chancellor ordered Bill Coggins to pay his ex, Alicia, $540 a month in periodic alimony. He also ordered Bill to make Alicia the beneficiary of $175,000 in life insurance on Bill’s life ” … to insure the payment of alimony in order to compensate [Alicia] and allow her to to survive …” if Bill should predecease her.

Bill appealed, complaining that the life insurance requirement was “excessive considering its purpose,” as in Johnson v. Pogue, 716 So.2d 1123, 1134 (¶41) (Miss.App. 1998).

In Coggins v. Coggins, decided Febarary 11, 2014, the COA agreed and reversed the chancellor’s ruling. Judge Maxwell wrote for the majority:

¶35. An alimony payor “may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” Bell, Mississippi Family Law § 9.08[4][c] (citing In re Estate of Hodges, 807 So. 2d 438, 442-44 (¶¶14-23) (Miss. 2002)). The key phrase is “alimony obligations that survive the payor’s death.” ¶36. Periodic alimony is an obligation that “terminates automatically” upon the payor’s death and cannot be imposed upon the payor’s estate, absent an express agreement. Armstrong, 618 So. 2d at 1281; see In re Hodges, 807 So. 2d at 443 (¶19). While lump-sum alimony fully vests at the time of the divorce judgment, periodic alimony only vests on the date each payment becomes due. In re Hodges, 807 So. 2d at 442 (¶17). So when the payor dies, the only alimony obligations that survive—and the only obligations that may be insured—are unpaid lump-sum alimony and unpaid periodic-alimony payments that have already vested.

¶37. Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life insurance policy to protect the recipient spouse against such a contingency. Pogue, 716 So. 2d at 1134 (¶41); see also Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005). But in Pogue, this court found that requiring the payor to maintain a $75,000 life insurance policy to protect against the potential failure to make $500-per-month alimony payments was “excessive.” Pogue, 716 So. 2d at 1134 (¶41).

¶38. How much more excessive then is the requirement that Bill designate Alicia as the beneficiary to $175,000 in life-insurance proceeds to protect against Bill defaulting on his $504-per-month alimony payments and then dying before curing the default. This amount of insurance—the equivalent of thirty years worth of alimony payments—assumes not only that Bill may fall behind for three decades but also that Alicia will experience no material change of circumstances altering or terminating her need for alimony. Such an amount is unreasonable. Even when we factor in the unpaid portion of the $25,000 hybrid property settlement/lump-sum alimony obligation that has vested to Alicia, we find requiring Bill designate Alicia receive seven times that amount upon his death is still excessive.

¶39. We remand for the chancellor to consider whether requiring Bill to designate Alicia as a beneficiary is necessary to protect against the alimony obligations that may survive Bill’s death. If the chancellor determines the designation is necessary, he should require Bill to designate Alicia as beneficiary to a portion commensurate to those potential obligations.

There must be proportionality between the amount of alimony reasonably expected to come due and the amount of life insurance to protect that amount. The only guide we have from the case law, however, is that for $500 monthly alimony $75,000 is too much, and $175,000 is ‘way too much.

Do you always include a prayer in your divorce pleadings for life insurance to secure child support, alimony, and other obligations? And do you have your client and possibly other witnesses testify about the need for it? If you don’t do either or both, you should start.

And don’t overlook marshalling some proof about what the cost of the life insurance will be. I have denied that prayer for relief because I had no idea from the evidence in the record what the premiums would cost the paying party.

Enforcing the Temporary Order

February 19, 2014 § Leave a comment

Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?

It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”

So … what are you going to do about it?

In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:

¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).

You have several ways to approach enforcement of temporary orders:

  • You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
  • With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
  • Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.

The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.

As a Muniment of Title Only

February 18, 2014 § 2 Comments

A lawyer emailed me last week with a quandary. She had prepared a judgment to admit a will to probate as a muniment of title. Before she finalized it, she checked this blog and read with confusion my post on the subject that cautioned against including language adjudicating heirship or ownership. She said that her firm usually included such language in their judgments. And she asked a most apt question: If you’re not going to adjudicate ownership, what’s the point?

Let’s look at the statute first:

SEC. 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.

 (1) When a person dies testate owning at the time of death real property in the state of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:

(a) The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and

 (b) All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.

 (2) If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.

 (3) The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.

 (4) This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.

Note that the very language of the statute says that ” … said will may be admitted to probate, as a muniment of title only …” The limiting word “only” means that it may be admitted for that sole purpose and for no other purpose. A muniment is documentary evidence. To recast the statute in plain language, then:

The will may be admitted for the sole purpose of serving as documentary evidence of title.

The statute does not contemplate that the will is admitted to adjudicate heirship, or ownership, or anything else. When the judge signs the judgment admitting the will to probate as a muniment of title, that judgment tells people searching the land records that he or she can rely on the will as documentary evidence of title, even though there has been no further, formal administration of the estate.

Subsection (3) underscores the function of the statute. It says that the rights of anyone desiring to contest the will are not affected.

When the will is admitted to probate under this section, it provides evidence of ownership, but not conclusive evidence, because it does not operate to extinguish claims: (1) of any person that the will was fraudulent or made with lack of capacity or the product of undue influence; (2) of illegitimates who could attack the validity of the will; or (3) of creditors who claim that they were not paid.

So, if you’re not going to adjudicate ownership or even heirship, what is the point? Why bother with this procedure? Well, it gives persons who want a complete chain of title, and who don’t have the money or the time for a full administration, a shorthand way to add this particular link to that chain. And, keep in mind that it only applies in certain, limited situations. If the estate doesn’t fit, full administration is the way to go.

Now, what about the inquirer’s concern that her firm has been presenting judgments with adjudications included? I told her if her chancellor will do that, go ahead and include it, but my sense of the consensus among chancellors is that most will not adjudicate anything other than admission of the will as a muniment of title only. If you’re in doubt, pop into your chancellor’s office and ask. Most chancellors will be happy to chat with you about it. Keep subsection (3) in mind, though. That adjudicatory language you included won’t be the final word in any contest.

In this district, we will not sign a judgment that does anything other than admit the will to probate as a muniment of title. That’s how we understand the statute.

What is the practice in your district?

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