Family Law CLE Reminder

June 30, 2016 § Leave a comment

If you’ve been around here a while, you know that I am a believer in Dean Bell’s annual Family Law CLE seminars.

Time is running out to register for this year’s edition. You can register at this link. Seminars are scheduled for Oxford on July 8, Gulf Coast on July 22, and Jackson on August 5.

As I have said before, I am not in the business of promoting any particular event or publication, but Deborah Bell’s seminars are the best annual update of Mississippi family law that I have found. I have attended 18 of the past 19 years, and the materials and presentation are always an invaluable resource for lawyers — and judges — in this field. This year’s will be her twentieth.

While you’re at it, you should get a copy of her Bell on Mississippi Family Law, which is about the best desk reference you will find on the subject.



Some Thoughts About Partition Procedures

June 28, 2016 § 2 Comments

Following up with some thoughts on Moss v. Mathis, about which I posted yesterday:

  • I was glad to see the COA accept the role of the statutory commissioner to serve as a special master pursuant to MRCP 53. The reason is that the rule sets out a specific procedure that is easy to understand and follow, in contrast to the statute, which does not prescribe any precise procedures. R53(a) specifically states that the term “Master” includes, ” … a referee, an auditor, an examiner, a commissioner, and a special commissioner.”
  • If you are involved in any case where the court has appointed a master under R 53, the first thing you should do is drop everything and read the rule. I try to incorporate language in my order that spells out the procedure, but I am not required to do that, and your chancellor may not include a roadmap for you.
  • Under R53, the master is required to arrange a meeting with the parties and to proceed to making a report as expeditiously as possible. Once the report is filed with the clerk, the court “shall accept the master’s findings of fact unless manifestly wrong.” The parties have ten days to file written objections. Action on the report or objections is initiated by motion and R5(b) notice. The court may adopt the report, or modify it, or may reject it in whole or in part or may take further evidence, or recommit it to the master with further instructions.
  • As Moss v. Mathis illustrates, unless you file something in the form of an objection to the master’s report, you will likely be stuck with it, even if it is directly contrary to what your client wants out of the case. Don’t assume because the report is contrary to your client’s position that the court will assume you are objecting. The rule is clear that a written objection is required. Also if you merely file an objection and do not notice it for hearing, you are deemed to have waived the hearing and even your objection. See, Gettis v. Frison, 99 So.3d 1186 (Miss. App. 2012).
  • So what kind of objection is required? Is it okay to file something like, “Come now the plaintiffs and object to the report of the special master”? Before you do that, notice the language in Moss v. Mathis at ¶13 about the Mosses’ failure to file any objection to either of the special master’s reports: “While the Mosses maintain that they object to the report, their specific objections remain unknown.” In Miles v. Miles, 949 So.2d 774 (Miss. App. 2006),  the court stated that the requirements of R6 (notice and time for notice), and R7 must be met. R7 states that “An application for an order shall be by motion which … shall be made in writing, shall state the particular grounds therefor, and shall set forth the relief or order sought. That seems to me to say that specific grounds for objection need to pled in your motion objecting — at least specific enough to enable the court, special master, and opposing parties know what it is you are complaining about.
  • As litigation grows more complex, you can expect to encounter R53 with increasing frequency in chancery.

The Special Commissioner in Partition

June 27, 2016 § 2 Comments

I don’t usually comment on cases in my court or originating here, but a recent decision of the COA merits your attention, so I am making an exception.

In this case, Mathis filed suit seeking partition of 60 acres of real property. Mathis claimed an undivided one-fifth interest, and averred that the property was not divisible in kind. The defendants, Moss family members, answered that the property was divisible in kind.

Pursuant to MCA 11-21-15, a commissioner was appointed to serve as a special master per MRCP 53(a). The special master filed his report in September, 2013, and requested a conference with the court, but no conference was held. Neither party filed any objection to the special master’s report.

There was a hiatus of nearly a year during which there was no activity in the case. In August, 2014, Mathis filed a motion to divide the property in kind. A hearing on the motion, with which the special commissioner agreed, was scheduled and rescheduled. On September 25, 2014, the parties signed an agreed order setting the hearing for November 12, 2014.

The special master filed an amended report in October, 2014, agreeing for the most part with the Mathis proposal, and setting his report for hearing on November 12, 2014. No objection to this amended report was filed by either party.

On November 12, 2014, the agreed date for hearing, counsel for the Moss family did not attend. No member of the Moss family was present. The special master and counsel for Mathis were present, and the judge entered a judgment accepting and adopting the special master’s report. Where there was a signature line on the judgment for the Moss’s attorney, the judge wrote, “DID NOT APPEAR.”

The Mosses appealed, and on May 24, 2016, in the case of Moss v. Mathis, the COA affirmed. Here is what Judge Barnes wrote for the court:

¶8. The Mosses raise only one issue: whether the chancellor committed manifest error in accepting the special master’s amended report without a hearing. The Mosses claim they had objections to the report, which were never allowed to be heard; therefore, their due process rights were violated. However, this argument is without merit. The Mosses never filed an objection to either of the special master’s reports; therefore, they were not entitled to a hearing. Regardless, several hearings on both reports were noticed to the parties, and at the final hearing, the Mosses’ counsel did not appear. Finally, the amended report was consistent with the requests the parties made in their pleadings.

¶9. Property-partition cases are generally governed by Mississippi Code Annotated sections 11-21-1 through -45 (Rev. 2004). Partition in kind is the preferred method of partitioning property in Mississippi. Fuller [v. Chimento], 824 So. 2d at 601 (¶8) (citations omitted). The propriety of partitioning property by sale or in kind is determined on a case-by-case basis. Id. at (¶9).

¶10. Regarding hearings on partition cases, a chancellor is not required to conduct a hearing on objections to the special commissioners’ [Fn1] report when the landowners do not submit their objections in the form of a motion and do not notice or request a hearing. Miles v. Miles, 949 So. 2d 774, 779 (¶18) (Miss. Ct. App. 2006). Alternatively, Mississippi Rule of Civil Procedure 53(g)(2) suggests that a chancellor must conduct a hearing when a party does submit objections in the form of a motion and complies with the rules of notice for hearings. Id. For the procedure on the report’s acceptance and objections, Rule 53(g)(2) states:

The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.

The Miles court clarified that it does “not suggest a party to a partition action has no right to a hearing,” but rather, “a party has a right to a hearing on their objections to a special commissioners’ report where the party that seeks the hearing follows the requirements set forth in Rules 53(g)(2)” and other related procedural rules. Miles, 949 So. 2d at 780 (¶21).

[Fn1] In Miles, “special commissioners” were appointed, which is the term the Mississippi partition statutes use, but here, the pleadings and the chancellor refer to a “special master.” Mississippi Rule of Civil Procedure 53(a) states the word “master” of the court includes “special commissioner.”

¶11. The Mosses’ argument follows the plaintiff/appellants’ argument in Miles very closely, even though this Court rejected that argument and affirmed the chancellor’s partition order, finding no violation of the appellants’ due-process rights because of the chancellor’s failure to conduct a hearing. See id. Additionally, Miles is distinguishable from this case because in Miles the chancellor did not have a hearing at all, as the plaintiffs “did not follow the necessary procedural requirements to even place the chancellor on notice that they desired a hearing.” Id. Here, several hearings were noticed, and one was held, but the Mosses never objected to the report.

¶12. The Mosses concede that Mississippi partition statutes – specifically section 11-21-25 – do not require a chancellor to conduct a hearing on the merits.[Fn 2] See Miles, 949 So. 2d at 779 (¶17). Like the appellants in Miles, the Mosses cite to Rule 53(g)(2) as authority for their argument, and that they needed a hearing in order to object to the report. However, that is not the proper procedure. As Miles explains, the chancellor is to conduct a hearing once a party submits his objections in the form of a motion, or notices a hearing. See Miles, 949 So.2d at 779 (¶18). Here, the Mosses did not submit objections at all.

[Fn 2] Section 11-21-25, on the report by the special commissioners, reads in pertinent part:

The special commissioners shall make to the court . . . a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court . . . or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.

¶13. While the Mosses maintain that they object to the report, their specific objections remain unknown. The amended report was consistent with the parties’ requests in their final pleadings. Initially, the Mathises sued for partition by sale, and the Mosses filed a counter complaint for partition in kind, although they did not state how they wanted the property partitioned. Over one year later, the Mathises changed their request from a partition by sale to a partition in kind. They filed a motion asking that the property be divided so that they would receive twelve of the sixty acres on the east side of the tract adjoining other property they own. The special master’s amended report stated that counsel for the Mosses agreed that the Mathises owned an undivided one-fifth interest in the property and agreed that the Mathises were entitled to have their interest partitioned in kind, but not by sale. Accordingly, the Mathises were conveyed the twelve-acre parcel they requested.

¶14. Further, from the record, the Mosses had opportunities to be heard or object to both the initial and amended reports, as several hearings were noticed, [Fn 3] but they did not do so until this appeal. Even now, they do not state their specific objection. On November 12, 2014, the special master and counsel for the Mathises were present, but counsel for the Mosses was not. On the final judgment, a handwritten notation made by the court on the signature line for the Mosses’ counsel indicated counsel “DID NOT APPEAR.” The Mosses’ counsel had an opportunity to appear and object but did not. Accordingly, we cannot find any violation of the Mosses’ due-process rights, or manifest error in the chancellor’s decision.

[Fn 3] Hearings were noticed by either the special master or counsel for the Mathises on September 26, 2013, August 14, 2014, September 25, 2014, and November 12, 2014.

I have a few thoughts about this case, but this post has gone on long enough. I’ll share my comments tomorrow.



Dispatches from the Farthest Outposts of Civilization

June 24, 2016 § Leave a comment


Periodic or Lump-sum?

June 22, 2016 § Leave a comment

When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:

“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”

Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.

Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.

In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.

Some observations:

  • Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
  • As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
  • In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
  • Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
  • As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?


MRE Restyled

June 21, 2016 § Leave a comment

The MSSC entered an order last Friday, June 17, 2016, adopting a restyle of the MRE, effective July 1, 2016.

You can find a side-by side comparison of the current rules and the restyle at this link.

I looked for a link to the June 17 order on the MSSC site, and have not been able to find it. I received a copy of the court’s order in the mail Monday morning.

Update … Thanks to Gabe Goza at the court, here’s the link to the order and restyled rules.

MRE Comments are Gone

June 20, 2016 § Leave a comment

Replaced by “Advisory Committee Notes” per an order of the MSSC on June 16, 2016.

The order states:

After due consideration, we find that the comments should not represent the “Official Comments of the Court” or serve as “authoritative guides” for interpreting the Mississippi Rules of Evidence. Instead, we find that the comments should be renamed Advisory Committee Notes and represent commentary from the Advisory Committee on Rules, whose members represent the bench, bar, and the law schools of this state.

I think what the court is concerned about is that some people cite the Comments as authority on a par with the rules themselves, when what they were originally intended to be was only guide to understanding with the authority of the court behind them. Meaning that one could rely upon them as a reliable guide to understanding the rules consistent with the court’s understanding.

By making them Advisory Committee Notes, the court removes the force of authority, and casts them more in the light of secondary authority, like a hornbook or scholarly article: persuasive, but not binding on the court.

So what does this mean for most practitioners. As a practical matter, nothing significant. You will still be able to rely on the Notes as a guide to understanding, but you will likely find when you cite them as authority that they carry much less weight than the comments did.


MEC Privacy Rule Amended

June 17, 2016 § Leave a comment

The MSSC yesterday struck MEC Administrative Procedures Section 9.A.5, which addresses what information must be redacted or omitted from pleadings and other filings with the court. The stricken provision read as follows:

5. Home addresses to the city and state. All addresses shall be limited to the city and state. No street addresses or apartment numbers should be used.

That should come as a relief to most lawyers and judges who have been scratching their heads over how to get process issued in any meaningful way.


Suing on Behalf of a Ward

June 15, 2016 § 2 Comments

I frequently see petitions to appoint a guardian on behalf of a ward whose “only asset is a claim for personal injuries” to be asserted in a suit to be filed in circuit or federal court. I sign the order appointing and then don’t hear anything further from the participants until some time later after they have either hit the jackpot or have some middling settlement to approve.

The problem with the above is that it omits several steps. Several important, even vital, steps.

Take a look at MCA 93-13-27. Here it is in a nutshell:

  • All “suits, complaints, actions and administrative and quasi judicial proceedings for and on behalf of a ward for whom a general guardian has been appointed” must be brought in the name of the guardian for use and benefit of the ward.
  • Even though the foregoing language uses the term “general guardian,” the statute goes on to apply itself equally to general guardians, guardians of the estate only, guardians of the person and estate, and guardians of the person only.
  • Any such action may be commenced only after authority has been granted to the guardian “by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony.”
  • A certified copy of the order authorizing the filing of the suit must be attached to the pleading commencing the action.
  • If suit or other proceeding is commenced, a certified copy of the authorizing order must be submitted “as evidence of his authority.”

The intent of the statute is clear that (a) you must get authority before proceeding, and (b) you must put the court or tribunal and other party on notice of your authority.

What might happen if you did not get authority and your case languished on a circuit court docket for more than three years after the occurrence and the other side moved to dismiss per MRCP 12(b)(6). Might you have a statute-of-limitations problem?


Happy Birthday, BCPB

June 14, 2016 § 16 Comments

Well, it’s been 6 years since I started this endeavor. June 14, 2010, was the date of inception.

When I started I intended it as a tool for lawyers in this district. I soon learned, however, that lawyers in the surrounding areas were using it. Then I heard from lawyers in far-flung parts of the state. And then I found out that judges were using it. The positive feedback I have gotten has kept me going.

Since we started, there have been 1,617 posts. The most-viewed ever was on April 21, 2015, with 1,509 views. Week in and week out, the most popular day and hour is Tuesday at 9:00, a.m.

Most remarkably, there have been 3,466 comments. Thanks to all of you who take the time to comment. I really enjoy your input, feedback, and humor. And, yes, I like to be set straight when I am off the mark.

I look forward to another year. And I look forward to hearing from you.

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