February 29, 2016 § 1 Comment
Last week I posted about the COA’s decision in Hughes v. Hughes, affirming the chancellor’s conclusion that the petitioner at trial had failed to prove cohabitation, mutual financial support, or de facto marriage so as to terminate his ex-wife’s periodic alimony.
Here are a few thoughts:
- Before you pocket the fee and set off on a quest to terminate or reduce alimony, be sure you are up to date on the law. Many of the old, moralistic rules that we older lawyers recall are long gone. Hughes includes a nice recap of the evolution of our present rules.
- Hughes illustrates just how difficult it can be to terminate alimony. Make sure you have proof that invokes every factor. These cases are extremely fact-intensive; they warrant careful and extensive discovery. You will lose if you file your pleadings, set the case for trial, and expect to win simply because the ex told someone that she and her new boyfriend have a romantic relationship.
- In Hughes, these facts were not enough to tote the load: Muriel and Darrell had a monogamous romantic relationship for more than four years; Darrell stayed overnight at Muriel’s home around once a week, and she occasionally spent the night at his; the two travelled together, and Muriel is a member of Darrell’s barbecue competition team; they travel together to Corvette car shows; they attend family events together; when travelling they stay in the same hotel room or in the barbecue trailer; Darrell gave Muriel valuable jewelry; Darrell stored a Corvette in Muriel’s garage; Darrell displayed one of his Corvettes in Kentucky with a plaque that read, “On loan from Darrell Hill & Muriel Hughes.”
- You just have to love the facts recited from Burrus at ¶24: Jolee spent more than $7,500 on her boyfriend’s criminal defense and paid for “his motel rooms while he was attempting to evade arrest; and she got a tattoo that said, “James’ girl.” You can’t make that kind of stuff up.
February 26, 2016 § 4 Comments
Reprise replays posts from the past that you might find useful today.
OUTLINE FOR MINOR’S SETTLEMENTS
July 16, 2010 § 8 Comments
[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
- Are all necessary parties properly joined?
- Ward – petitions through guardian or next friend.
- Both parents, if living, are essential parties unless the child is placed under legal guardianship of one parent (e.g., by divorce) or of a third party.
- If neither parent is living and no legal guardianship has been established, a guardianship should be established before going forward with the settlement.
- Is there any need to join ancillary 3rd parties such as DHS or Worker’s Compensation Commission? § 93-13-59, MCA; Mississippi Bar v. Moyo, 525 So.2d 1289 (Miss. 1988).
- A guardianship is not required for settlements of money or property valued at $25,000 or less, and the $25,000 amount refers to the gross amount and not the amount due the ward after payment of legal fees and expenses. The court may, in its discretion, require a guardianship in any case, and in this court’s opinion, a guardianship should be required if the gross settlement settlement amount is $10,000 or more. § 93-13-211, MCA.
- The court must conduct a hearing regarding settlement of the ward’s claim, and a witness on the ward’s behalf must be heard. Union Chevrolet Co. v. Arrington, 138 So.2d 593 (Miss. 1932).
- The hearing must be had on the record.
Approval or Disapproval of Settlement
- The court considers the evidence presented to determine whether the settlement is in the best interest of the child.
- The court may apply terms and conditions for holding the minor’s property during the period of guardianship.
- When a guardianship is established, annual accounts of receipts and expenditures are required unless excused by the court.
- A final accounting is necessary at the cessation of the guardianship. § 93-13-67 through -77, MCA.
- § 93-13-38, MCA, 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, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
February 25, 2016 § 2 Comments
Timothy and Mariel Hughes were divorced in 2008. Tim was ordered to pay Mariel $2,500 a month in periodic alimony.
Tim filed pleadings in 2011 to terminate alimony based on cohabitation and de facto marriage.
The case was set for a two-day trial in May, 2013, but could not be concluded in that time, so a date was set four months later for the third day. Then the original chancellor recused himself, and the case was reassigned to another chancellor. The third day of trial was scheduled for a date ten months after the first day. Following a hearing, the chancellor ruled that Tim had failed to prove either cohabitation or a de facto marriage. Tim appealed.
In Hughes v. Hughes, handed down February 16, 2016, the COA affirmed.
Judge Wilson’s opinion includes a helpful exposition on the law. Here’s how he addressed the law of cohabitation vis a vis alimony:
¶7. In an earlier time, a divorced woman risked forfeiture of her right to alimony payments if she engaged in a sexual relationship with another man subsequent to the divorce. See, e.g., Owen v. Gerity, 422 So. 2d 284, 287-88 (Miss. 1982); McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). Such forfeitures were based at least in part on “a moral judgment that a divorced woman should not engage in sexual relations.” Hammonds [v. Hammonds], 641 So. 2d [1211,] at 1216[(Miss. 1994)]; see also McHann, 383 So. 2d at 826 (“To hold otherwise would be to condone adultery . . . .”). However, in Hammonds, the Supreme Court limited this forfeiture doctrine to cases in which the alimony recipient is “cohabitating” with another and receiving support from, or providing support to, that person such that the financial need for alimony is reduced or eliminated. Hammonds, 641 So. 2d at 1217. Per Hammonds, the “moral aspects of the cohabitation” are no longer a basis for terminating alimony. Id. In a subsequent decision, the Court clarified that “proof of cohabitation creates a presumption that a material change in circumstances has occurred” and “shift[s] the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶7) (Miss. 1997).
¶8. In Scharwath, after Frank and Dianna divorced, Dianna commenced a relationship and cohabited with Jim Burns. Id. at (¶5). She allowed Burns to live in her home rent-free and provided him with a truck for use in his carpentry business. Id. at (¶6). In turn, Burns made improvements to the home, including re-flooring the basement and building a deck; he regularly mowed the yard; and he took on various other tasks and responsibilities around the house. Id. “He even moved furniture into the home[.]” Id. On these facts, the chancellor found that Dianna and Burns were cohabiting but denied Frank’s petition to modify alimony because he found that the cohabitation did not involve substantial mutual support. Id. at (¶5). On appeal, the Supreme Court held that the chancellor erred by relying on “the lack of direct financial evidence” of mutual support. Id. at (¶7). The Court observed that “parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed” if “only financial documentation” will suffice to support such a finding. Id. For this reason, the Court adopted—and remanded to the chancellor with instructions to apply—a “rule that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Id.
¶9. In a more recent case, Bill alleged that his ex-wife, Alicia, had forfeited her right to alimony by cohabiting with her boyfriend and enjoying his support. Coggins [v. Coggins] , 132 So. 3d [636,] at 643 (¶26) [(Miss. App. 2014)]. “Bill’s main evidence of cohabitation” was that the boyfriend’s car was often at Alicia’s house late at night and early in the morning. Id. at (¶28). Alicia and her boyfriend admitted that he stayed at her house one or two nights a week, but both denied that he lived there permanently. Id. The boyfriend had his own residence, kept no personal items at Alicia’s house, and did not contribute to her household financially or in kind. Id. The chancellor found that “Bill failed to prove Alicia cohabited with her boyfriend, so the mutual support presumption did not arise.” Id. at (¶27). The chancellor also found that even if Alicia and her boyfriend were deemed to be cohabiting, she had rebutted the presumption of mutual support. Id. Emphasizing that a “chancellor’s findings of fact about cohabitation, de facto marriage, and mutual support ‘are entitled to substantial deference when reviewed on appeal,’” we affirmed. Id. at (¶29) (quoting Pritchard v. Pritchard, 99 So. 3d 1174, 1177 (¶19) (Miss. Ct. App. 2012)).
¶10. In another recent case, we affirmed the denial of a motion to modify alimony on the following facts:
Sharon [(the ex-wife)] had a sexual relationship with Rooks, regularly stayed overnight weekends and several days during the week, and went on vacations with him and his family. Sharon and Rooks testified that Sharon did not receive any financial help from him to pay her bills or contribute to her everyday expenses. Sharon also maintained a separate residence and stated that she and Rooks had no plans to marry. Keith [(the ex-husband)] testified that he observed Sharon’s car at Rooks’s house several times a week. McMinn, 171 So. 3d at 518 (¶26). We agreed with the chancellor that a “relationship accompanied by sexual activity, alone, does not rise to the level necessary to forfeit alimony.” Id. Indeed, the Supreme Court made this point clear twenty years earlier in Hammonds. We reemphasized that the chancellor’s findings on these issues are entitled to “substantial deference when reviewed on appeal,” and we found nothing “manifestly wrong” in the chancellor’s determination that Keith failed to prove cohabitation or mutual support. Id. at (¶27) (quoting Coggins, 132 So. 3d at 643 (¶29)).
The court went on to analyze the proof, the court held that the chancellor properly declined to apply the presumption of mutual support.
As for the issue of de facto marriage, the court explained the law this way:
¶18. In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a “de facto marriage.” A de facto marriage may be proven in two ways. See Deborah H. Bell, Mississippi Family Law § 9.10 (2005). First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony. See Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999). Second, a de facto marriage can be found absent cohabitation if the alimony recipient and another person have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). We discuss these two theories of de facto marriage below.
A. Avoiding Remarriage
¶19. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony of $5,000 per month. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple told friends that they planned to marry “next year,” but then testified that they had no immediate plans to marry. Id. However, on cross-examination, Linda “admitted . . . that she and Anderson had not to go on excursions they [might] not otherwise be able to enjoy.” The chancellor did not clearly or manifestly err by concluding that the mere sharing of travel expenses with a boyfriend is not “mutual support” sufficient to warrant the termination of alimony. married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate homes, though Anderson did have a key to Linda’s home. Id. at 1133-34 (¶6). Anderson spent the night at Linda’s home only a few times a month, but he ate meals there regularly, ran errands for her, and did yard work and other household chores. Id. at 1134 (¶6). Linda and Anderson vacationed together and admitted to a sexual relationship. Id. They spent holidays together and bought gifts for each other, and Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothing and cosmetics from the department store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).
¶20. On appeal, we concluded that there was “substantial evidence in the record to support the chancellor’s finding that [Linda] and Anderson [had] provided ‘mutual support’ to one another.” Id. at 1136 (¶15). Anderson provided discounts and domestic services to Linda, and Linda wrote him checks and allowed him use of her “luxurious home.” Id. Thus, we found that it was “clear from the record that Anderson benefit from [Ben’s] largesse and [Linda] benefit financially from her relationship with Anderson.” Id.
¶21. We also affirmed the chancellor’s termination of alimony on the ground that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id. (quoting Anderson v. Anderson, 692 So. 2d 65, 72 (Miss. 1997)). [Fn omitted] * * *
B. Living Arrangements and Financial Affairs
¶23. As noted previously, a de facto marriage may exist where an alimony recipient and a third party have “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Pope, 803 So. 2d at 504 (¶12) (citing Scharwath, 702 So. 2d at 1211 (¶¶6-7)). In Pope, the chancellor found that no material change in circumstances had occurred where the ex-wife became “romantically involved with another man,” she “spent a number of weekends in his company” at his expense, and “on five or six occasions [he] stayed overnight in her home.” Id. at (¶11). There was also evidence that he “helped her buy groceries” when he visited and loaned her $4,000, which she later repaid. Id. We affirmed, concluding that the chancellor did not abuse his discretion by finding “that the relationship . . . had never risen to the level . . . [of] a de facto marriage relationship.” Id. at (¶13).
¶24. Conversely, in Burrus, we affirmed a chancellor’s finding of a de facto marriage between the alimony recipient, Jolee, and James, who regularly stayed at her house. James had a key to Jolee’s home and kept his clothes there.” Burrus [v. Burrus], 962 So. 2d [618,] at 622 (¶18) [(Miss. App. 2006)]. Jolee also gave James an ATM card for her bank account and authority to use it. She spent more than $7,500 on, among other things, James’s attorneys’ fees and other costs of his defense on criminal charges, his motel rooms while he was attempting to evade arrest, and his clothes, cell phone, and cell phone bills. Id. “In return, James . . . continually performed and provided ‘in kind’ household services and chores in Jolee’s home, including maintenance and repair of the home.” Id. “Additionally, Jolee testified, as did her children, that she had recently gotten a tattoo that [said], ‘James’ girl.’” Id. [Fn omitted]
A few comments to follow in a later post.
February 23, 2016 § 4 Comments
Back when I practiced, I would often think as I pored over 8.05’s, “How can people live on this little income?” On the bench I see financial statements that raise the question quite often.
So it was with some interest that I stumbled on a web site that actually calculates by locales the amount of money people need to maintain a decent living standard, or a “living wage.” This link will take you to the page for the State of Mississippi as a whole. Although there are links to the counties, when I clicked on several different ones, the figures looked suspiciously like Mississippi’s state-wide figures, so I don’t know how useful the local figures are.
A bonus is the “Typical Annual Salaries” table.
Here are some Mississippi figures from the web site that struck me: 2 adults (both working) with two children need $47,822; 2 adults (only one working) with one child need $35,495; and one adult with one child needs $35,989. All of the figures are post-taxes.
I would say that, without exception, those figures are nearly double what I see routinely in my court.
Whether or not you buy into these calculations, they offer some profound food for thought. Your clients and their families are living, breathing individuals who have the same needs that you have for food, shelter, clothing, recreation, and financial security. It’s easy to lose sight of that when you’re accompanying them through the throes of litigation. The fact is that people are poor in our state, and that includes, unfortunately, many people who are working hard to provide for their families.
On the other hand, there are many of us who make significantly greater income than those minimal figures. From our lofty perches, we don’t tend to think much about those far below. That’s too bad, because those people barely getting by are like an anchor on our economy. In some counties, the political leadership has addressed the need and has succeeded in economic development that creates good-paying jobs and helps communities up out of poverty. The rest of us will have to wait.
February 22, 2016 § 2 Comments
Back in July of last year, I did a post entitled “The Excusable Neglect Trap,” based on Estate of Nunnery: Nunnery v. Nunnery.
The case is notable because the chancellor refused to grant a lawyer’s motion to extend the time within which to appeal an adverse ruling in an estate property dispute. The lawyer’s motion was based on a claim that he had not filed an appeal within the deadline because he was called to the bedside of his brother, who had been seriously injured in an automobile accident and died soon after. The COA affirmed the chancellor’s ruling.
On January 29, 2016, the MSSC granted cert from the COA’s decision.
This is a case that bears watching, particularly if the MSSC uses it as an opportunity to clarify for trial judges and lawyers just what the bounds of excusable neglect might be. Stay tuned.
February 21, 2016 § 1 Comment
A thoughtful post on Phillip Thomas’s Mississippi Litigation Review & Commentary blog on stress and the unhealthy ways that lawyers cope with it.
February 19, 2016 § 2 Comments
February 17, 2016 § Leave a comment
Only last week I posted about a COA decision in which the court cited the Bluewater Logistics case for the proposition that the trial judge’s verbatim adoption of a party’s proposed findings of fact and conclusions of law no longer triggers either heightened scrutiny nor less deference on the part of the appellate court.
That mention, in Carlson v. Brabham, was merely a comment by the court.
Then, last Tuesday, the COA actually had occasion to address the same principle raised in an appellant’s assignment of error.
In Stallings v. Allen, handed down February 9, 2016, Kenneth Stallings appeared pro se in response to a R81 pleading filed by Meeka Allen charging him with contempt and requesting an upward modification of child support. The chancellor rejected his request for a continuance and let the hearing go forward. At the conclusion of the hearing, the judge ordered both sides to present proposed findings of fact and conclusions of law, which they did.
The chancellor adopted Meeka’s proposed findings, and, as a result, Kenneth was: found in contempt; ordered to provide dental insurance for his child; ordered to pay medical expenses; had judgments in excess of $6,500 assessed against him; and was ordered to pay attorney’s fees; and had his child support increased. All in all, it was not a particularly good day for Kenneth in court that day.
Kenneth appealed — again pro se — raising several issues, one of which was that it was error for the chancellor to adopt the other side’s proposed findings. Judge Barnes addressed Kenneth’s homemade argument:
¶11. Kenneth cites in support of his argument Rice Researchers Inc. v. Hiter, 512 So. 2d 1259 (Miss. 1987); [Fn 1] however, this case held, and the Mississippi Supreme Court has repeatedly reiterated, that “a trial court may adopt verbatim, in whole or part, the findings of fact and conclusions of law of a party.” Id. at 1266; Chamblee v. Chamblee, 637 So. 2d 850, 858 (Miss. 1994); Omnibank v. United S. Bank, 607 So. 2d 76, 82-83 (Miss. 1992). Such action is within the trial court’s discretion and is not “reversible error in and of itself.” Hiter, 512 So. 2d at 1265 (citations omitted). The usual standard of review applies: “This Court will not disturb the findings of the chancellor when supported by substantial evidence unless the chancellor has abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Thomas v. Scarborough, 977 So. 2d 393, 397 (¶9) (Miss. Ct. App. 2007) (quoting Sanderson v. Sanderson, 824 So. 2d 623, 625-26 (¶18) (Miss. 2002)). Further, the “heightened scrutiny” standard cited by Meeka no longer applies. The supreme court has held “our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than another.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 156 (¶27) (Miss. 2011). The trial court’s reliance on the party’s findings will not be deemed error if substantial evidence exists to support those findings. Thomas, 977 So. 2d at 396 (¶10) (citing Sanderson, 824 So. 2d at 625-26 (¶8)).
[Fn 1] Kenneth also cites in support Mississippi Code Annotated section 11-7-87 concerning “circuit court” practice, but that code section was repealed in 1991.
¶12. Here, there was no procedural error for the chancery court to adopt verbatim Meeka’s proposed findings of fact and conclusions of law. As stated in the past, “[t]his Court recognizes the complexities and nuances of individual cases, which in addition to crushing trial court caseloads necessitate substantial reliance upon the on submissions of trial counsel. Id. (citing Hiter, 512 So. 2d at 1266).
Aside from the fact that proposed findings of fact and conclusions of law are more work, I wonder why more lawyers don’t offer to do them. As I have posted here before, it can be an unequalled opportunity to write the final judgment in the case.
February 16, 2016 § 2 Comments
Rhea Sheldon of Purvis has been appointed by Governor Bryant to serve as one of the four chancellors in the 10th District, which consists of Forrest, Lamar, Marion, Pearl River, Perry, and Stone Counties. She fills the post vacated by Dawn Beam of Sumrall, who was appointed by Bryant as Justice of the Mississippi Supreme Court. Sheldon has been in private practice since 2003.
February 15, 2016 § Leave a comment