SOL and the PSA
September 2, 2015 § 7 Comments
We visited the COA decision in Moseley v. Smith here before. It’s the 2014 case in which the importance of a hold-harmless agreement in a PSA was underscored when the COA held that, although the husband’s underlying debt obligation may have been discharged in bankruptcy, his obligation to his ex-wife based on a hold-harmless clause was not.
There’s another aspect of that case that merits your attention.
On appeal the ex-husband argued that his ex-wife’s claim against him was barred by the three-year statute of limitations (SOL) applicable to contract claims. His position was supported by the case of D’Avignon v. D’Avignon, 945 So.2d 401 (Miss. App. 2006), which held that property division matters in a property settlement agreement (PSA) are governed by the three-year SOL that applies to contracts.
In Moseley, however, the COA changed its position and held that all PSA provisions are incorporated into the court’s final judgment of divorce and, therefore, the seven-year SOL governing enforcement of judgments applies.
Two thoughts:
- Remember that SOL is an affirmative defense that must be asserted by the party who claims it. It is not an automatic bar to the action, but rather a defense that must be affirmatively pled. In a recent case in my court the parties litigated the issue whether the ex-husband was in contempt for non-payment of installment lump-sum alimony. Some of the early payments were due more than seven years before suit was brought. No one raised a SOL issue; therefore there was no bar to obtaining a judgment on those unpaid amounts.
- Before a judgment expires, you can renew the judgment per MCA 15-1-43. The extension is for a period of seven additional years. Most property provisions of PSA’s are resolved before that initial seven-year period expires, but some do not.
The Better Chancery Practice Blog 
[…] posted here not too long ago about the need to assert a defense of statute of limitations (SOL), saying that “It is not an […]
I have a case pending down here on the Coast with that very issue- about the 7 year period on a judgment, but there’s another slight twist- there’s case law out there (not sure if it’s the Moseley decision, maybe it’s Cartite) that suggests or even holds that the 7 year period is tolled until such time as the obligation under a PSA kicks in. In my case, my client was due an amount of money from the ex-husband AFTER the filing of their separate tax returns the following year, and of course my client never received the money. She did wait a long time before raising her hand on this issue, but she did come to me well within 7 years of the ex-husband’s obligation kicking in. Will be interesting.
Concerning SOL in the case that was before you and that SOL was not plead, would the holding in MS Dept. of Human Services v. Guidry, 830 So.2d 628 (2002), a MS Supreme Court Case, affected your decision?
Dunno. I’ll check that out. Thanks.
The tolling of the SOL is the issue in Moseley.
” Appellant argued that the seven-year statute of limitations for judgments tolled the contempt action, but the court of appeals held that the limitations period only began to run ‘within seven years of learning that the bank was pursuing [appellee] for the remaining debt….’ This ruling appears to apply a “discovery rule” to the seven-year statute, the result of which is to nullify the limitations period in this case.”
The Miss.S.Ct. granted cert. in this case on Aug. 13, 2015. It is definitely one to watch.
Glad to see that. It will make the rule clear one way or the other. Thanks for letting us know.