February 17, 2014 § Leave a comment

State holiday. Courthouse closed.

Dispatches from the Farthest Outposts of Civilization

February 14, 2014 § 3 Comments





Getting All the Heirs Aboard

February 13, 2014 § 4 Comments

Since 2010, it has been the common practice across the state for chancellors to require an heirship determination in intestate estates (some chancellors require it in testate estates also).

That’s because MCA 91-1-29 specifically requires it, as does MCA 91-7-293.

Most attorneys accomplish the requirement by filing a petition to determine heirs, publishing process for unknown heirs.

So, you have opened the estate and had your administratrix qualified. You joined the three siblings, and you have started publishing notice in the local newspaper for unknown heirs. Have you and your fiduciary done all that the law requires?

Not necessarily.

In the case of Estate of Thomas v. Thomas, 883 So.2d 1173, 1177 (Miss. 2004), the MSSC said this:

¶ 12. Under Mississippi case law, the administratrix of an estate is under a duty to use reasonable diligence to ascertain potential heirs. Smith ex rel. Young v. Estate of King, 579 So.2d 1250, 1252 (Miss.1991). See also In re Estate of Johnson, 705 So.2d 819, 822 (Miss.1996). Another duty of the administratrix is to provide notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims would be barred if the 90-day statutory time period had run. King, 579 So.2d at 1253. Under Mississippi law, an administratrix acts as a fiduciary for all persons interested in the estate. Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878, 881 (1964). The administratrix has this duty of notice by statute. Miss.Code Ann. § 91-1-29 (Rev.2004). In King, as here, the administratrix failed to notify the court of a reasonably ascertainable heir and failed to notify the heirs that the paternity claims would be barred if not timely filed.

MCA 91-1-15(3)(c) is a statute of limitations for claims of illegitimates against an estate, and in most circumstances that limitation does not begin to run until the illegitimate receives actual notice( be sure to read this statute).

So, let’s say that your client, the administratrix, actually knows that the decedent had an illegitimate child. If she conceals that fact from you, and it later comes to light, the administration of the estate, including any final judgment, closing, and disbursement, is subject to a finding of fraud on the court and consequent setting aside. And … there is no time limit on an action to set aside a judgment for fraud on the court.

Likewise, if you and your fiduciary do not do due diligence to discover any illegitimates, your administration of the estate is in jeopardy from later claims of illegitimates who say that they were not properly noticed.

How do you protect yourself and the heirs? Some suggestions:

  • Grill your client about who all the heirs might be, and ask whether there are any “outside children.” Ask if there has even been a suspicion that there might be illegitimates, and ascertain not only who they might be, but also who might be the father, the grandparents, aunts, uncles, or persons with knowledge. Investigate, make contact, ask questions.
  • Get your client to sign an affidavit you can file with the court spelling out what knowledge the fiduciary has as to any illegitimates, and the diligent search and inquiry that has been done to identify and contact them.
  •  As a further measure of internal protection, you might want to compose a letter to your client recounting what he or she told you about illegitimates, and itemizing the efforts made to identify and contact them. Then have your client sign a file copy acknowledging receipt.
  • Sometimes it happens that a person believed to be an illegitimate heir disclaims the heirship or any interest in the estate. If possible, get that person to sign a disclaimer of heirship and any interest in the estate, and file it with the court. If he or she refuses, have personal process served.
  • If you unearth certain or purported illegitimate heirs, have them personally served with process and notice per MCA 91-1-15(3)(c) that his or claims will be barred unless filed within the statutory time.
  • Be sure to include the names of any known or purported illegitimate heirs in your petition for determination of heirship and publication notice. Ask the court to adjudicate them not to be heirs unless they file a timely action per MCA 91-1-15(3)(c).    

Grammy Nomination for this Opinion

February 12, 2014 § 3 Comments

This from the first paragraph of Judge Griffis’s decision in the COA case O’Brien v. O’Brien, handed down February 11, 2014:

¶1. Russell Gary O’Brien appeals the chancellor’s judgment of divorce. He argues that the decree “reads like a honky tonk chorus,” and he refers to Jerry Reed’s hit song “She Got The Goldmine (I Got The Shaft).” We affirm in part and reverse and remand in part.

A Proper MRCP 54(b) Certification

February 11, 2014 § Leave a comment

In February, 1969, John Whitehead, Jr., executed a will naming his wife, Marie, and their four sons at the time, each mentioned by name, as his beneficiaries. The will set up a family trust to support Marie for her life, and then to support the named sons until each reached age 30, at which time each would receive his share of the corpus.

There were two subsequent codicils to the will. There were also two after-born children, one legitimate and one illegitimate.

The will and codicils were admitted to probate, and Jonathan, the illegitimate son, filed a declaratory judgment action in the estate proceeding asking the court to declare that he was a residuary beneficiary because the trust failed.

The chancellor granted summary judgment in favor of the estate, adding a R54(b) certification of finality, finding that there was “no just cause for delay.”

The COA took the case and affirmed in Whitehead v. Estate of Whitehead, rendered September 24, 2013.

This case illustrates what I consider to be an ideal situation for application of R54(b). The judge’s ruling disposed of all of Jonathan’s issues in the estate. The declaratory judgment action was essentially put to an end by the R56 summary judgment, so there was no sense in making Jonathan await the closing of the estate, which may take some considerably longer time, before he could take his appeal. The R54(b) ruling had the added advantage that, if the COA reversed, Jonathan could possibly return to the chancery court to participate in the ongoing administration of the estate.

I’ve posted here many times about cases rejected by our appellate courts due to no or improper R54(b) certification. Reading the R54(b) decisions, it appears that oftentimes it is unclear whether the case is a proper one for its application. This case was pretty clear.

Pending Legislation of Interest to Chancery Practitioners

February 10, 2014 § 1 Comment

Here is a list of bills that may be of some interest to you in your chancery practice. I relied on the titles to select the bills to list; I have not read all of these.

You can click on this link to find any of the listed measures. You will find information on the bill, including its status, sponsor, and the committee(s) to which it has been referred.

HB 32   Partition of property; revise method of appointing freeholders.

HB 44   Courts; prohibit from applying foreign law under certain circumstances.

HB 67   Special judges; revise compensation cap.

HB 126   Protection from domestic abuse; clarify record.

HB 218   Uniform laws; create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

HB 342   Uniform laws; enact Uniform Foreign-Country Money Judgments Recognition Act.

HB 409   Mississippi Bar; remove repealer.

HB 427   Licensed school employees; allow use of personal leave near holiday if summoned by court.

HB 486   Birth certificates; Tribal Court of the Choctaw Indians has same authority as chancery courts to make changes/corrections in.

HB 487   Tax liens; provide for centralized filing with the Department of Revenue.

HB 511   Liens; bring forward stop-notice sections.

HB 570   Evidence; revise provisions regarding certain privileged communications.

HB 579   Court Collections Fund; create.

HB 696   Real property; clarify certain identifying information for instruments presented to the chancery clerk for recording.

HB 810   “Andrew Lloyd Law”; require DHS to be notified before a mentally ill person receives treatment if person has minor children.

HB 837   Judicial qualifying deadline; bring forward for purposes of amendment.

HB 878   Sex offenders; clarify notice to volunteer organizations regarding status.

HB 882   Mississippi Entity Conversion and Domestication Act; enact.

HB 884   Unclaimed Property Act; revise several provisions of.

HB 885   Overdue child support; payable to custodial parent after emancipation of child.

HB 891   Rule against perpetuities; revise with respect to certain trusts.

HB 917   Mississippi Trust Decanting Act; create.

HB1014   Physician Order for Sustaining Treatment Act; create.

HB1026   Trial courts; bring forward circuit, chancery & district attorney sections.

HB1030   Commission Against Interpersonal Violence; create.

HB1031   Domestic abuse protection orders; authorize justice & municipal courts to issue final orders.

HB1033   Domestic violence; revise.

HB1042   Uniform Premarital and Marital Agreements Act; enact.

HB1058   Guardian ad litem; clarify duties and appointment.

HB1084   Uniform Power of Attorney Act; create.

HB1400   Abortion; prohibit performing at or after 20 weeks.

HB1411   Foreign executor or administrator; revise authority of financial institutions to turn over property or funds of a decedent to.

HC 25   Parental rights; State of Mississippi recognizes.

B026   Tax liens; provide for centralized filing with the Department of Revenue.

SB2125   Authority of chancery court to revise birth certificates; Tribal Court of MS Band of Choctaw Indians has same authority.

SB2180   Adoption; expedited for readoptions of foreign-born adoptees.

SB2240   Uniform laws; create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

SB2471   Cyber-bullying; revise and clarify electronic communication offenses.

SB2474   Trial courts; redistrict.

SB2476   Domestic violence; clarify sentencing status of multiple offender, revise protection order.

SB2480   Adoption records, confidentiality of; provide for contempt and misdemeanor proceedings.

SB2483   Mental commitment cases; revise screening process.

SB2559   Commercial Real Estate Broker Lien Act; create.

SB2622   Contractor’s liens; revise stop notice law.

SB2626   Domestic violence; revise penalty.

SB2629   Domestic violence; clarify when arrest may be made without warrant.

SB2676   Witness fees; conform to juror pay.

SB2727   Mississippi Uniform Trust Code; create.

SB2809   Uniform Power of Attorney Act; create.

SB2837   Domestic Violence Protection Order Registry; require arresting officer to perform check.

SC 523   Amendment to the United States Constitution relating to parental rights; urge Congress to propose.

SC 531   Post-ratify federal voting age 18 amendment to the United States Constitution.SC 542 United States Constitutional Convention under Article V; apply for federal debt consideration.

“Quote Unquote”

February 7, 2014 § Leave a comment

“Responsibility does not only lie with the leaders of our countries or with those who have been appointed or elected to do a particular job. It lies with each of us individually. Peace, for example, starts within each one of us. When we have inner peace, we can be at peace with those around us.”  —  Dalai Lama

“Responsibility: A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star.”  —  Ambrose Bierce

“One of the annoying things about believing in free will and individual responsibility is the difficulty of finding somebody to blame your problems on. And when you do find somebody, it’s remarkable how often his picture turns up on your driver’s license.”  —  P.J. O’Rourke


Reprise: That Checklist Thing

February 6, 2014 § 2 Comments

Reprise replays posts from the past that you may find useful today.


May 27, 2011 § 2 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

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

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

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Another Deference Decision with an Appellate Attorney’s Fees Point

February 5, 2014 § 2 Comments

The COA’s decision in Proctor v. Proctor, handed down January 28, 2014, is one of those cases where the appellate court deferred to the chancellor’s discretion, both on application of the Ferguson factors in equitable distribution, and on the Armstrong factors vis a vis alimony.

I talked about deference in a previous post. Proctor is an illustration of how stout the trial judge’s judgment can be when she invokes the applicable factors and her decision is supported by substantial evidence in the record. You might want to pay particular attention to Judge Barnes’ opinion at ¶ 19, where she points out that equitable division need only be equitable, not equal. That seems to be a concept that many lawyers and litigants do not grasp.

Another point that bears mention is at ¶ 36, where Judge Barnes addresses Ms. Proctor’s request for an award of attorney’s fees on appeal:

Donna makes a cursory request that this Court award her attorney’s fees on her appeal, in an amount equal to one-half of the amount that was awarded by the chancery court, according to Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000), and Durr v. Durr, 912 So. 2d 1033, 1041 (¶30) (Miss. Ct. App. 2005). The distinguishing feature of these cases, however, is that the appellee was requesting attorney’s fees for defending the case on appeal, not the appellant prosecuting the appeal, unsuccessfully. Therefore, we deny Donna’s request. 

A Common Sense Approach to Dividing Retirement Accounts

February 4, 2014 § Leave a comment

When it comes to dividing retirement accounts in divorce, the case law and arguments of counsel can be all over the ballpark. Do you divide the accounts as you would cash money, by percentages or assigned sums? Or do you order a division of the stream of income as you would alimony?

How and whether a military retirement account should be divided was the issue in the COA case of King v. King, decided January 14, 2014. I believe Judge Fair’s specially concurring opinion sets out the proper approach that chancellors should use in determining the nature of, and how to divide, retirement accounts. Here it is verbatim:

¶12. The issue dividing the majority and dissent is whether there was a Hemsley-Ferguson-Armstrong compliant treatment of military retirement benefits belonging to Joseph. Those benefits were being paid to him monthly, having matured from a dormant asset into a stream of income. For that reason I concur with the majority in recognizing that the treatment of such benefits by the chancellor was in accord with the intent of those three cases and their progeny.

¶13. The Supreme Court of Mississippi handed down Hemsley and Ferguson in July 1994, providing factors for consideration by chancellors in establishing and equitably dividing marital assets. In 1993, Armstrong had set out similar factor guidance for determining alimony. Later rulings have emphasized that these three cases govern financial relations – past, present, and future – of divorcing spouses, and should be considered together, with one receding in effect when another increases.

¶14. The first case recognizing the interdependency of those three “factor discussion” cases was handed down five months after Hemsley and Ferguson. In Johnson v. Johnson, 650 So.2d 1281 (Miss. 1994), the supreme court introduced the concept of remedying, through alimony, a “deficit” in income and lifestyles between parties after equitable division of their marital property and evaluation of their separate property, if any. A chancellor is required to first determine income from employment and from marital property and separate property. Then, if a deficit results, then the chancellor should award alimony in one or more of its three common forms (lump sum, rehabilitative, and periodic) to address the deficit. Overall fairness, equity, and especially finality undergird such treatment, with an emphasis in recent cases placed on avoidance, if at all possible, of continuing financial relationships between spouses (other than child support).

¶15. The Uniformed Services Former Spouses’ Protection Act (USFSPA), cited in both the majority and the dissent, has been compared on occasion by the supreme court to the 1986 COBRA provisions under which a chancellor may divide marital ERISA qualified retirement plans (Tamra’s 401(k), for instance) without tax consequence. However, Joseph’s military retirement, like Tamra’s PERS retirement, and all other government retirement programs, are exempt from the COBRA Act and its “Qualified Domestic Relations Orders” (QDRO). Military retirement has its own requirements for benefit distribution in divorce cases.

¶16. USFSPA allows only income streams from military retirement benefits to be awarded, prohibiting lump sum apportionment and limiting the total of all alimony and child support to 50% of the service member’s regular retirement income stream. Thus, the maximum benefit possible for Tamra under those restrictions is $267 monthly, which is half of Joseph’s $1,144 less $305 in agreed child support. Apportioning that amount to Tamra as payment, in installments, for her share of a property interest in Joseph’s retirement would raise her gross $4,100 per month to $4,367 and reduce Joseph’s to $1,330, further increasing the deficit that favors an award of alimony to Joseph.

¶17. We should formally recognize the difference between an ERISA plan and military retirement plans, and perhaps all retirement accounts actively paying monthly benefits which cannot be altered. For example, PERS contributions on early termination of employment, and 401(k) and IRA contributions at any time, may be withdrawn by a spouse at the time of divorce and are therefore still divisible, some through a QDRO without loss of tax-deferred status. On the other hand, a vested income stream that has commenced in a government plan is not, as the majority recognizes, divisible or payable in lump sum, and should be considered under the Armstrong alimony prong only.

¶18. Such treatment of an existing retirement income stream would be in accord with the view our supreme court takes of “good will” in business valuations, likewise not a divisible asset readily convertible to cash but rather a source of monthly income to be considered in alimony determination only.

In other words, when the retirement account is not divisible by law, and has been converted to a stream of income, it should be treated as income, and not as a divisible asset convertible to cash.

Annuities also come to mind when enumerating the types of assets that such an approach would cover.

I think Judge Fair is right on target with this.

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