December 24, 2014 § 1 Comment

Taking a holiday.

Next post January 5, 2015.

The Gift of Care

December 23, 2014 § 2 Comments

A message for this season from Henri J.M. Nouwen.

Why is it that we keep the great gift of care so deeply hidden? Why is it that we keep giving dimes without looking into the face of the beggar? Why is it that we do not join the lonely eater in the dining hall but look for those we know so well? Why is it that we so seldom knock on a door or grab a phone just to say hello, just to show that we have been thinking about each other? Why are smiles still hard to get and words of comfort so difficult to come by? … Why do we keep bypassing each other on the way to something or someone more important?

Maybe simply because we ourselves are so concerned with being different from others that we do not even allow ourselves to lay down our heavy armor and come together in a mutual vulnerability. Maybe we are so full of our own opinions, ideas, and convictions that we have no space left to listen to the other and learn from him or her.

There is a story … about a university professor who came to a Zen master to ask him about Zen. Nan-in, the Zen master, served him tea.

He poured his visitor’s cup full, and then kept pouring. The professor watched the overflowing until he could no longer restrain himself. “It is overfull. No more will go in!” “Like this cup,” Nan-in said, “you are full of your own opinions and speculations. How can I show you Zen unless you first empty your cup?”

To care means first of all to empty our own cup and to allow the other to come close to us. It means to take away the many barriers which prevent us from entering into communication with the other. When we dare to care, then we discover that nothing human is foreign to us, but that all the hatred and love, cruelty and compassion, fear and joy can be found in our own hearts. When we dare to care, we have to confess that when others kill, I could have killed, too. When others torture, I could have done the same. When others heal, I could have healed, too. And when others give life, I could have done the same. Then we experience that we can be present to the soldier who kills, to the guard who pesters, to the young man who plays as if life has no end, and to the old man who stopped playing out of fear of death …

When Jesus had received the five loaves and fishes, he returned them to the crowd, and there was plenty for all to eat. The gift is born out of receiving. Food came forth out of kinship with the hungry, healing out of compassion, cure out of care. he or she who can cry out with those in need can give without offense.

As long as we are occupied and preoccupied with our desire to do good but are not able to feel the crying need of those who suffer, our help remains hanging somewhere between our minds and our hands and does not descend into the heart, where we can care. But in solitude our heart can slowly take off its many protective devices and can grow so wide and deep that nothing human is strange to it.


Merry Christmas and Happy Holidays to all.

This piece is excerpted from Out of Solitude: Three Meditations on the Christian Life, by Henri J.M. Nouwen, Ave Maria Press. I found this in the December, 2014, print issue of The Sun Magazine.

Reprise: Common Mistakes of Fiduciaries (and their Attorneys)

December 22, 2014 § Leave a comment


July 18, 2012 § 4 Comments

  1. Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
  2. Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
  3. Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
  4. Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
  5. Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.

Dispatches from the Farthest Outposts of Civilization

December 19, 2014 § Leave a comment







Equitable Estoppel and Enforcement of Child Support

December 18, 2014 § 5 Comments

Jay Wilson and Joy Stewart were engaged in a contempt action over Jay’s failure to pay child support, alimony, and expenses of the children, based on the parties’ 2003 divorce judgment.

The chancellor found Jay in contempt, awarded Joy a judgment, and Jay appealed. Among his grounds for appeal was the claim that Joy was equitably estopped from bringing the child-support-enforcement action, since she had waited several years to do so.

The COA, in Wilson v. Stewart, decided December 9, 2014, by Judge Fair, addressed his argument briefly:

¶14. Jay also argues that Joy is equitably estopped from bringing the contempt action. This Court has found equitable estoppel to be inappropriate in child-support matters. Durr v. Durr, 912 So. 2d 1033, 1038 (¶14) (Miss. Ct. App. 2005). “[C]hild support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support.” Id. This argument is without merit.

The Durr decision goes somewhat further:

¶ 13. [Mr.] Durr also argues that Hale is equitably estopped from bringing the contempt action. “Equitable estoppel,” as Durr points out in his brief, “is generally defined as the ‘principle by which a party is precluded from denying any material fact, induced by his words or conduct, upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was followed.’ ” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991).

¶ 14. It is well settled law, as we discussed above, that child support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support. Moreover, even if we were to find, which we do not, that equitable estoppel might be appropriate in child support cases, we would likewise find that Durr failed to meet the requirements for its application in this case. He has not shown how he changed his position in such a way that he would suffer injury if Hale is allowed to assert his lack of compliance with the judgment of divorce. In a feeble attempt to show that all of the conditions for the application of the doctrine of equitable estoppel exist, Durr argues that he is facing jail time if the arrearage is not paid. This is hardly the type of injury that is contemplated as a condition for the application of “equitable estoppel.”

¶ 15. Further, Durr does not contend that Hale ever informed him that he did not have to pay for Waid’s private school. Rather, his argument, as we have already noted, is that she just waited too long to assert the claim for it. In other words, Durr’s position is that Hale’s inaction in timely pressing the private school tuition, justifiably led him to believe that he did not have to pay it notwithstanding the clear requirements of the judgment of divorce. Surely, Durr knew that any changes to, or modifications of, the judgment of divorce would have to be made by the court in order for them to be enforceable. Therefore, we find this issue lacks merit.

The court also rejected Durr’s claim that his inaction was justified by his ex’s “inaction, representations, and silence.”

So, from the foregoing, I think a proper conclusion is that claims of equitable estoppel are not favored in child-support cases, and that it would take an extreme case to apply it. An example is the fact situation in Varner v. Varner, where the mother informally induced the father to take one of the children back into his custody due to behavior and school problems. During his period of informal custody (i.e., without a court order), the father reduced his child support pro rata. After the father straightened the child out and returned him to the mother’s custody, she sued for the unpaid child support. Varner is not an equitable estoppel case, per se, but its fact situation would justify such a claim in my opinion.

Findings on a Rule 60 Motion

December 17, 2014 § 4 Comments

Aside from the remarkable fact that the December 9, 2014, COA case of Pride v. Pride involved twelve (12) pro se appellees, the decision also makes the notable point that findings of fact and conclusions of law are not necessarily  required in the court’s ruling on a R60 motion.

This is a partition case involving 150 acres, more or less, in which siblings disagreed over the division. The chancellor ordered that a house and one acre be sold at auction, and six years later two brothers filed a R60 motion for relief from judgment, which the chancellor denied. The brothers also asked the court for specific findings of fact and conclusions of law, per R52(a), which the chancellor also denied. The brothers appealed.

The order for sale of the home had been the subject of a previous appeal, which was found to be without merit in Pride v. Pride, 60 So.3d 208 (Miss. App. 2011). The COA characterized the six-year after-the-fact R60 motion in this case as ” … nothing more than his unsupported assertion …” that he (one of the brothers, William) was entitled to some relief. He did not invoke any of the legitimate bases of R60, and he offered no evidence to support his claims. The court found no merit to his R60 argument.

As for his claim that the chancellor should have made specific findings of fact and conclusions of law, Judge Roberts, for the majority, said this:

¶10. Next, William claims that the chancellor erred when he did not provide written findings of fact and conclusions of law related to the decision to deny the Rule 60(b) motion. Rule 52(a) of the Mississippi Rules of Civil Procedure provides that “[i]n all actions tried upon the facts without a jury[,] the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” If a party requests findings of fact and conclusions of law, and the trial court does not enter them, an “appellate court must consider the effect of the trial court’s missed responsibility, and overwhelming evidence may be required as a condition for affirmance.” Bodne v. King, 835 So. 2d 52, 57 (¶15) (Miss. 2003). “Whe[n] . . . a case is hotly contested and the facts [are] greatly in dispute[,] and whe[n] there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Tricon Metals & Servs. Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). However, a trial court is only obligated to enter requested findings of fact when an action has been “tried upon the facts without a jury.” Harmon v. Regions Bank, 961 So. 2d 693, 700 (¶24) (Miss. 2007).

¶11. The chancellor was not required to view the allegations in William’s Rule 60(b) motion as though they were true. William’s Rule 60(b) motion was not an action “tried upon the facts,” because it did not include anything but allegations, and no facts were ever presented. William fails to explain how the chancellor could possibly find any facts after he failed to present any. And the chancellor’s decision to deny William’s Rule 60(b) motion did not result in the entry of a judgment. Therefore, the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law. It follows that we find that the chancellor did not abuse his discretion, and there is no merit to this issue.

The axis upon which the COA’s decision turned was the absence of any evidence upon which the court was asked to rule. In essence, the brother(s) were asking the court for a do-over on their already-lost position.

One way to approach the rules is through a literal reading and rigid application: the rule says it, so do it. The better approach, to me, is to consider what is to be accomplished and why. Here, findings of fact and conclusions of law would be nothing more than a rehash of what had been done before, since the brothers presented nothing new. It would have been an empty exercise that might have planted the possibility of error in the record, which may be just what they had in mind to further delay this already-lengthy litigation. As MRCP 1 says, “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”

In the COA’s recitation of the case’s history, the quotes from Pride, supra, repeatedly refer to the William’s 2006 motion for a JNOV (directed verdict) as to the court’s order for a partition in kind. <SIGH> It’s a lamentable subject I posted about here recently.

A Double Nightmare for Counsel

December 16, 2014 § Leave a comment

Sometimes we assume something and it makes us say “Ouch.”

Gregory Dailey and his ex, Tracie McBeath, were entangled in child-support-contempt litigation. Hearing had been continued a time or two, and Gregory’s attorney had filed a motion to compel discovery, noticed for the most recent trial setting, and both counsel agreed that the case should be continued. That’s where things went haywire.

Here’s how Judge Barnes, in the COA case of Dailey v. McBeath, issued November 25, 2014, described the situation:

¶5. A hearing on the petition was held April 19, 2012. Tracie’s counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.

So, Gregory is a no-show, possibly because he and his attorney assumed that a simple order addressing the discovery issues with a resulting continuance would be the net result. But, that assumption proved to be painfully incorrect, as Judge Barnes went on to describe:

¶9. Gregory’s counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties’ motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties’ motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney’s files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:

I’m going to continue with the case and you have no authority to release your client. I have that trouble in other cases and it’s my policy to go forward. . . . And I’m not going to play games with discovery. . . . Y’all should have cooperated with each other. I’m going to try the case, so just get your stuff ready.

. . . .

Now, what I will do is give y’all a chance to visit to see if you can resolve the matter. And it may be that you can talk to your client by phone. I will not tolerate from either one of you all the failure to cooperate and discuss a case.

¶10. On appeal, Gregory argues that the chancellor’s denial of a continuance, which gave his counsel only seventeen minutes to prepare for trial, was “an inherent abuse of discretion” and that he was “ambushed” and “unable to defend himself.” A chancellor’s decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So. 3d 788, 794 (¶14) (Miss. Ct. App. 2011) (citing Robinson v. Brown, 58 So. 3d 38, 42 (¶10) (Miss. Ct. App. 2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So. 3d at 42 (¶10). [Footnote omitted]

¶11. While the chancellor’s decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.

¶12. Consequently, we find any prejudice suffered by Gregory due to the chancellor’s decision to proceed with the hearing was of Gregory’s own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.

  A few nuggets sifted from the ashes:

  • Never wait until the day of trial to bring unresolved discovery disputes to the court’s attention.
  • Never assume that you will be granted a continuance, even when both sides ask for it.
  • Never, ever, excuse your client from being present for a matter set for hearing by court order.
  • Never argue with a straight face that you are being “ambushed” when the case has been set for 14 months.

Remember two important principles:

  • The older a case becomes, the less likely the chancellor will be to grant motions that would have the effect of prolonging it, and
  • If you insist on assuming something, be prepared to deal with the consequences when your assumption proves to be incorrect.

R.I.P. Chancellor Ray H. Montgomery

December 15, 2014 § 6 Comments

Retired Chancellor Ray H. Montgomery died Sunday, December 14, 2014.

A Remand Without a New Trial

December 15, 2014 § Leave a comment

I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.

That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.

In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.

The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:

¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.

Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.

How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.

Scene in Mississippi

December 12, 2014 § 4 Comments




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