November 28, 2014 § Leave a comment

State Holiday.

Courthouse Closed.

November 27, 2014 § Leave a comment

State Holiday.

Courthouse Closed.

Reprise: Exempt Property and Estates

November 26, 2014 § Leave a comment

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


October 28, 2010 § 11 Comments

You’re handling an estate of a decedent whose spouse predeceased him.  The decedent was a man of modest means with a two-bedroom home in town, some furniture and appliances, an older car, some savings and $6,000 in a 401(k) account.  There’s not enough cash to  pay all the creditors’ claims.  The surviving children and grandchildren want you to close the estate as soon as possible.  Do you advise them to sell the furniture at an estate sale to muster up enough cash to satisfy the creditors?  Or should you get court approval to sell the house, pay the debts, and distribute what’s left?

Not so fast.  All that property may not even belong in the estate in the first place.  It may not be subject to the creditors’ claims at all.

MCA § 91-1-19 provides in part:

The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”

What this language means is that the property that is exempted by Mississippi law from sale under execution or attachment descends automatically, not through any estate, as stated in the statute.  You would be shortchanging the statutory survivors considerably by not pursuing the exemptions.

It’s important to know what are the exemptions.  MCA § 85-3-1 sets out the personal property and financial assets that are exempt:

There shall be exempt from seizure under execution or attachment:

(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:

(i) Household goods, wearing apparel, books, animals or crops;

(ii) Motor vehicles;

(iii) Implements, professional books or tools of the trade;

(iv) Cash on hand;

(v) Professionally prescribed health aids;

(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.

Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.

(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.

(ii) Income from disability insurance.

(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:

(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;

(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and

(iii) An individual retirement account.

(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.

(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.

(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.

(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).

(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.

(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.

(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.

(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.

(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.

MCA § 85-3-21 establishes the homestead exemption.

There are other exemptions that are set out in the cross-references to the code sections cited.

MCA § 91-7-117 requires the appraisers to set apart the exempt property.

As attorney for the estate, you have a duty to determine what assets need to be declared exempt and not included in it.  In moderate estates it could mean the difference between survivors getting nothing and the survivors getting something.

Now re-read the first paragraph above.  Do you see it differently?

Can Homosexual Behavior be HCIT?

November 25, 2014 § 2 Comments

Rosie Jackson charged her husband Michael with habitual cruel and inhuman treatment based on allegations of Michael’s homosexual behavior, which he denied.

The allegations arose from three sources: (1) Rosie testified that in 2008, she received a call from Michael’s friend John, who complained that he wanted Michael to leave him alone, but John testified at trial that he and Michael had not had sexual contact; (2) Rosie said that one of Michael’s former students, James, told her that Michael had molested him 26 years earlier, and the individual did testify to that effect at trial; and (3) Alma Flowers, the Jacksons’ daughter overheard a 3-way conversation, without Michael’s knowledge, in which Michael solicited a man for oral sex.

Rosie testified that, after she confronted Michael about the allegations, Michael bullied and tried to intimidate her, and she experienced problems with blood sugar and blood pressure, sleeplessness, and anxiety, for which she was prescribed medication.

The chancellor found from the evidence that Rosie had proven Michael guilty of habitual cruel and inhuman treatment. Michael appealed, claiming that the judge erred in finding that Rosie was entitled to a divorce.

The COA affirmed on November 4, 2014, in Jackson v. Jackson. Judge Ishee’s opinion addressed the adequacy of proof to support the judge’s findings on grounds for divorce:

¶13. “The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law.” Jones v. Jones, 43 So. 3d 465, 469 (¶7) (Miss. Ct. App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1 (Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and inhuman treatment. In order to establish a divorce on such ground, the offended spouse must show conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Jones, 43 So. 3d at 469 (¶9) (citations omitted).

¶14. In reviewing whether the conduct reaches that of cruel and inhuman treatment, the chancellor must consider: “1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff.” Fisher v. Fisher, 771 So. 2d 364, 367 (¶10) (Miss. 2000) (internal quotations and citations omitted). The evaluation of the impact of the conduct on the plaintiff is subjective. Smith v. Smith, 90 So. 3d 1259, 1263 (¶11) (Miss. Ct. App. 2011) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). “The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id.

¶15. “The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection.” Fisher, 771 So. 2d at 367 (¶9). The chancellor granted Rosie a divorce based on a finding that Michael’s homosexual relations were such that they made the marriage revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual cruelty – whether Michael’s conduct was so unnatural and infamous as to make the marriage revolting to Rosie.

¶16. There has only been one case where the Mississippi Supreme Court has found that a homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court found that “[u]nnatural practices of [pederasty] are an infamous indignity to the wife . . . which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife.” Id. Since Crutcher, this Court has found that evidence of homosexual affairs, when combined with other misconduct, can justify a divorce based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So. 2d 681, 689 (¶¶27-28) (Miss. 2001).

¶17. The record here reflects it was not only alleged that Michael was involved in homosexual affairs, but that he had also molested a child. Rosie testified to learning about both allegations within rapid succession of one another. We find that the combination of this conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties. However, it is well settled that a spouse’s testimony regarding an offending spouse’s behavior must be corroborated when habitual cruel and inhuman treatment is asserted. Pace v. Pace, 16 So. 3d 734, 741 (¶31) (Miss. Ct. App. 2009) (citation omitted).

¶18. Rosie’s testimony was supported by both Flowers and James. Flowers corroborated the allegations of a homosexual affair by testifying to the conversation she heard where Michael solicited sexual favors from another man. In support of the child-molestation allegations, James gave detailed testimony regarding the molestation that occurred at the hands of Michael when James was only ten years old. In addition to relying on this testimony, the chancery court also relied on other statements made by Rosie. However, we will address the other testimony in Michael’s next issue. We find that Rosie’s testimony, coupled with the corroborating testimony of both Flowers and James, was sufficient alone to support that Michael’s conduct was cruel and inhuman.

¶19. Michael contends that, even if his conduct was found to be inhuman or cruel, Rosie failed to establish a causal connection between his conduct, the separation, and how it impacted her. We disagree. There is no longer a requirement that a specific act caused a separation but “[i]t is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce.” Fisher, 771 So. 2d at 367-68 (¶10). Rosie testified that, upon learning of these sexual allegations, she began to experience adverse physical reactions to learning about Michael’s sexual relationships and history. She also noted, once she confronted Michael, the atmosphere in the home changed and she gave examples of how Michael treated her.

¶20. Michael also asserts that, if his conduct were found to be true, Rosie condoned his behavior by remaining in the marital home for nearly a year after learning about the homosexual affairs and child molestation. The chancellor noted, however, that Rosie had already left the marital bedroom in 2007 and had not engaged in sexual relations since 1999. Further, she was living with her disabled sister, Marian, in the marital home that had been specifically been renovated to accommodate Marian’s disabilities. The chancellor also commented that Rosie may have been in financial duress since she had to take a second job to cover her expenses following the separation. In his final judgment, the chancellor acknowledged that there was no evidence presented by either party as to why Rosie waited to leave Michael. Nonetheless, the chancellor concluded that each of these factors played a role in his finding that Rosie had not condoned Michael’s conduct.

¶21. The chancellor found that the evidence, Michael’s conduct, and the impact it had on Rosie established a divorce on the ground of habitual cruel and inhuman treatment. Although Michael denied the allegations, and several witnesses testified on his behalf, the chancellor found Rosie’s testimony to be credible. The supreme court has held that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robinson v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (citing Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). For these reasons, we find Michael’s overall conduct sufficient to support a divorce based on habitual cruelty.

The COA found that the chancellor erred in allowing in Rosie’s testimony of the hearsay conversation with John, but that it was harmless error since the other testimony of Rosie, corroborated by James and Alma, was sufficient. The court also rejected Michael’s objection that James’s allegations were remote in time.

This case presents a classic analysis of the second prong of HCIT. It’s something you can try to apply when that first prong involving danger to life or limb simply does not exist.

How Not to Prove Attorney’s Fees

November 24, 2014 § Leave a comment

Allene Crowell died in 2006. Her two surviving daughters, Caron Crowell and Jackie Trotter, were named co-executrixes.

Jackie filed a complaint charging that Caron had unduly influenced Allene to gift her an unfair share of Allene’s estate, and with converting the mother’s assets.

The chancellor did find undue influence and granted the estate a judgment against Caron. She filed a R59 motion, based on which the court added $100,000 to the judgment, on its own motion, finding that Caron had spent more than $100,000 of estate assets “on more than 40 lawyers” looking for legal opinions to support her position. The court ruled her actions to be a dissipation of estate assets.

Caron appealed, and the MSSC affirmed the chancellor’s ruling on the undue influence and judgment, but reversed on the $100,000 addition for attorney’s fees.

Here’s what Justice Randolph said for the unanimous court in the case of Estate of Crowell: Crowell v. Trotter, handed down November 6, 2014:

¶20. Caron argues that the trial court’s finding that she spent $100,000 of the estate’s money on attorney fees is contrary to the facts in evidence. Caron further argues that ordering her to pay $100,000 increases the value of the estate by $100,000 over the value established by Jackson.

¶21. We find that the trial court erred in sua sponte, post-judgment, increasing the judgment by $100,000 for Caron’s estimated expenditures on attorney fees. The record is inconclusive about both the amount of money spent on attorney fees, and from whose money the funds to pay the legal fees came. The trial court noted that Caron testified that the money came from her own funds, which was the only evidence presented.

¶22. At trial, Caron testified that she had seen at least forty-two lawyers. When asked how much she had spent on legal fees, Caron testified “It’s a lot.” When asked if she had paid for legal fees out of her own money, Caron responded:

A. Well, it depends – as long as Mother was alive, I think I used her funds. I didn’t spend that much really. You know, I was trying to get good legal advice for her and get her totally protected. A lot of the attorneys didn’t charge. But I don’t know how much. I don’t know how much it was. I don’t think it was all that much. Then since her, I have paid my own attorneys fees, and it’s been a lot. I – you know, there’s – it’s been a lot.

Q. Well, give me an estimate.

A. $100,000, I think.

Q. In attorney fees?

A. Yes, that’s a guesstimate, estimate.

¶23. The record does not disclose substantial evidence to support a $100,000 increase in judgment. Caron “guesstimated” the attorney fees to be around $100,000. No testimony of bank statements, canceled checks, bills from attorneys, or any other form of evidence was offered to support or contest Caron’s “guesstimate.”

¶24. If Caron actually spent $100,000 on legal fees, the only testimony before the court was that she paid most of the fees out of her own pocket. The $100,000 “guesstimate” followed her statement that she has paid “a lot” of her “own” legal fees. After Caron testified that she had spent a lot of her own money, counsel asked Caron for an estimate. “$100,000.00, I think” was responsive to a question asking how much of her own money she had spent, which is not substantial evidence to support the trial court’s finding.

*   *   *

¶26. The record lacks substantial evidence supporting that Caron actually spent $100,000 of the estate’s money. Caron’s ambiguous and unsupported $100,000 “guesstimate” is not substantial evidence. We find such a conclusion is in error.

No surprise here. The reason I am pointing this out is that Caron’s testimony is not too far off what I hear sometimes from witnesses on the issue of attorney’s fees. Vague, indefinite, ballpark figures, unsubstantiated with proof of payment and other supporting evidence, is simply not adequate to prove a claim for attorney’s fees that will stand up on appeal.

Sounds of Space

November 21, 2014 § 1 Comment

There is no audible sound in space, due to its vacuum.

NASA, however, found a way to record electromagnetic impulses emitted by planets, using a plasma wave antenna to record vibrations within 20 to 20,000 hertz, the range of human hearing. (Sorry for the ad).

Your Client’s Financial Well-Being

November 20, 2014 § 4 Comments

In family law, we see the intimate details of people’s financial pictures every day. So I’m always interested in how developments in the national economy affect people we see in our courts.

Looking at the Federal Reserve Board’s triennial 2013 Survey of Consumer Finances, I found these conclusions revealing:

  • Mean family income rose 4% between 2010 and 2013, after adjustment for inflation, but median income fell 5%. In my experience, incomes around here have been flat, except in high-paying jobs, which have increased in pay. Since the mean is usually skewed by outlying figures, and the median tends not to be, I would trust the median in this case to be closer to accurate. Also, that adjustment for inflation is misleading. The experts use prices of certain commodities to gauge inflation, and inflation has been fairly non-existent (ask anyone who lived through the 80’s). There is a hidden price creep, though. For instance, the price of a bag of coffee has remained fairly constant over the past several years, but the bag has shrunk from 16 oz to 12 oz, a reduction of 25%. You need to spend 25% more to buy same amount of coffee beans, but the shelf price for a bag has not gone up. An 18 oz box of cereal is now 14 oz, but at the same price it was when it was 18 oz. So you need to spend 22% more to buy the same amount of Froot Loops you did a while ago. I could go on and on, but you get the picture. When I pointed this phenomenon out to a grocer not too long ago, he said he had done his own calculations and concluded that shrinkage is averaging closer to 30%. So your paycheck is buying 30% or so less, but the government happily tells us that inflation is near zero.
  • Debt obligations fell during the three-year period. Many people retrenched during the recession, shedding debt as best they could, but the 8.05’s I see still have breathtaking amounts of debt, particularly consumer debt.
  • Fewer families had debt secured  by a primary residence, and those who did have home-secured debt owed less. I would be absolutely surprised if that held true in our little corner of the republic. From what I see, many middle-income folks refinanced when rates were low, and used the refi to tap into equity, increasing debt.
  • Education debt increased, both in terms of the numbers of people with such debt, as well as the average value of the debt. College education has increased by a stunning amount. We all know about how professional school expenses have escalated. Some people who think they can not afford or can not get into a legitimate academic institution turn to commercial operations that hold themselves out as “colleges” or “universities” but have no more valid academic credentials than a pool hall. In one case in my court, a young lady had spent $17,000 toward a “degree” as a lab tech from one of those diploma mills, only to learn that they had changed the requirements for that degree so that she would have to spend another $10,000 to complete it. She dropped out because she could not afford it, but she still has to pay the $17,000 in student loan debt. I pointed out to her that the “university” is bound by the catalog when she was admitted, and she should see a lawyer. That drew a blank stare. I wonder whether any laboratory worth its salt would consider a graduate of one of those places to be even minimally qualified.

From where I sit, I see life in the middle class as tough and getting tougher, from a financial standpoint. The financial statements I see show people with not a lot of income, but expanding expenses.

It’s important to be aware of how the changing financial environment is affecting your clients. What made sense to demand 10 years ago simply will not work today.


Justices Kagan and Scalia at OM Law School

November 19, 2014 § 4 Comments


USSC Justices Elena Kagan and Antonin Scalia will be guests of the Ole Miss Law School on December 15, 2014. Here’s the graphic from Ole Miss:



Non-marital Children, Estates, and the Statute of Limitations

November 18, 2014 § 4 Comments

Boyce Elmore died in 2000. His widow, Kathleen, opened an administration and was appointed administrator in 2002.

In 2010, more than ten years after Boyce Elmore died, Cedric Williams filed a paternity action in an effort to establish a claim to recover from Boyce’s estate.

The version of MCA 91-1-15(3)(c) in effect at the time provided that a non-marital child might file an action to establish paternity ” … within one (1) year of the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less …” Since Boyce’s estate had not been opened in the first year following his death, the publication provision was inapplicable.

Faced with the issue of Cedric’s timeliness, the chancellor ruled that, because Kathleen had failed to give Cedric notice of the estate, the statute of limitations had been tolled, and his action was timely.

The COA reversed the chancellor’s decision that failure to give Cedric notice tolled the statute of limitations, but would not apply the one-year statute because the appellant had failed to raise the issue on appeal.

MSSC granted cert.

In In the Matter of the Estate of Elmore: Jamison v. Williams, handed down November 6, 2014, the court affirmed the COA’s decision, but held that the appellant had “squarely presented” the issue before the chancellor on appeal and at trial by raising the issue of application of SOL under 91-1-15, so that the one-year statute did apply, and barred Cedric’s suit.

Based on all of this, I believe it is fair to say that failure to give notice to a purported non-marital heir will not toll the statute under the language in effect before 2005. The Mississippi legislature resolved the question in 2005 by adding language to MCA 91-1-15 that ” … this one-year limitation shall be self-executing, and may not be tolled for any reason, including lack of notice.”

A Rule More Observed in the Breach

November 17, 2014 § 6 Comments

Just a friendly reminder that MRAP 25(b) states in part:

“In all cases a copy of any brief on the merits shall be served on the judge who presided at the trial …”

Where Am I?

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