What You Say and How You Say it

June 13, 2016 § Leave a comment

When Lori and Gary Mosher appeared for the divorce trial to end their 26-year marriage, they agreed to a divorce on the ground of irreconcilable differences, and submitted several contested issues for adjudication by the court.

The parties agreed that Lori would receive “one-half of [Gary’s] military retirement,” but left it to the court, apparently, to decide the amount. The chancellor found that Gary’s “military retirement” consisted of two components: “his disposable retired pay”; and his VA disability retirement of around $400 a month. Half of the two components came to $1,795, after deduction for a survivor annuity. Since the VA benefit was not subject to division under federal law, the chancellor awarded Lori a greater share of the retirement.

Gary appealed, complaining that the chancellor had no authority to divide the VA benefits because their agreement was to divide the military retirement only.

The COA affirmed on the point in Mosher v. Mosher, handed down May 24, 2016. Judge Fair wrote for the majority:

¶8. This argument misses the mark. Although it is true that the parties here agreed to divide the “military retirement” equally, the property settlement agreement did not specify what that was. Property settlement agreements are contracts, and like all contracts, there are sometimes disputes regarding the meaning of their terms. Gaiennie v. McMillin, 138 So. 3d 131, 135 (¶8) (Miss. 2014). It is apparent that the chancery court interpreted the parties’ agreement rather than disregarding it as Gary contends. The chancellor dedicated nearly ten of the fifty-six pages of her written judgment to this question.

¶9. As to the interpretation of the agreement, while it is clear Gary does not agree with the chancellor’s decision, he has not briefed that issue. “[T]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to [the appellate court].” Birkhead v. State, 57 So. 3d 1223, 1231 (¶28) (Miss. 2011); see also M.R.A.P. 28(a)(6). Gary has failed to meet his burden of showing error on this issue.

There are other issues addressed in the opinion dealing with equitable distribution and alimony. Judge Carlton dissented in part, joined by Greenlee and Griffis.

The main takeaways here for practitioners:

  • What you say and how you say it are pretty dadgum important when it comes to court. If the parties intended that only the military retirement, not including the VA disability retirement, was to be divided, then the agreement should have stated exactly that. Precision makes all the difference. It’s pretty hard to argue that something was intended when that intent does not appear in the specific language.
  • If you do not cite authority for your position on appeal, you have effectively waived it.


Notes from a Journey

June 10, 2016 § Leave a comment

Click on a photo to see slide show …



Weighing Albright Factors

June 8, 2016 § Leave a comment

The MSSC decided in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), that child-custody decisions must rest on consideration of specified factors.

In the aftermath of that decision, some lawyers and judges conceived the notion that Albright was to be applied in scorecard-like fashion. If one party prevailed on more factors, that party was the winner.

Fortunately, that view did not prevail. The appellate courts clarified that the judge’s duty is to address and weigh each factor, and, based on that analysis, to make a determination of what is in the best interest of the child.

From time to time a case comes floating down from the appellate stratosphere that enlightens us in how the trial courts are to apply Albright. The most recent example is Edwards v. Edwards, handed down by the COA on May 3, 2016. In that case, Johnny Edwards questioned the chancellor’s decision to award Nancy Edwards custody of the parties’ three sons. Since the COA’s opinion is enlightening on the topic, I thought I would post the discussion here. Judge Fair wrote for the court:

¶5. Johnny presents what he styles two issues on appeal, but both essentially argue the same point: Johnny contends that the chancellor erred in considering circumstances outside Johnny’s control on the question of continuity of care.

¶6. In Albright, our supreme court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93-5-24 (Rev. 2013). In determining the best interest of the child in custody disputes, it is the court’s duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶7. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Albright, 437 So. 2d at 1005.

¶8. The chancellor is required to address each of the Albright factors that is applicable to the case before him. See Powell v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001). However, he need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So. 2d 408, 411 (¶12) (Miss. Ct. App. 2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003).

¶9. In a written opinion, the chancellor discussed each of the Albright factors. He found that the sex of the children – all three were male – favored Johnny. Continuity of care “slightly” favored Nancy because, although the parents had shared responsibilities prior to the separation, she had physical custody of the children for more than a year prior to the judgment. Parenting skills and employment responsibilities also favored Nancy, while the stability of the home favored Johnny, as Nancy had moved several times after the separation. The chancellor found that, on the whole, it was in the children’s best interest to remain with Nancy, though the parents would share joint legal custody.

¶10. Johnny argues on appeal that the chancellor erred in analyzing the continuity of care factor – specifically, he contends that Nancy had an unfair advantage based on a temporary order from an Alabama court. Johnny contends that the Alabama court had no jurisdiction to enter the order. He also faults Nancy for denying him visitation during the summer of 2013.

¶11. We find no merit to these contentions. It is true that the original articulation of the Albright factors directed the chancery court to consider the continuity of care prior to separation. See Albright, 437 So. 2d at 1005. But the supreme court has since held that care after separation must be considered as well. Copeland v. Copeland, 904 So. 2d 1066, 1076 (¶39) (Miss. 2004) (citing Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997)).

¶12. The chancellor recited the relevant facts and rendered a rational decision on this factor. He found:

Both parties cared for the children until their separation in 2010. Nancy testified that she had helped the boys with their homework, transported them to school, and cleaned the house. Johnny testified that he had cooked the meals, washed the clothes, and cleaned the home. Each party argued that he or she had been the primary caregiver. Since their separation, Jalen and Jorden lived with their father for two years and in 2012 began living with their mother. Jonivan has lived with Nancy since 2010. It seems that each party has been the primary caregiver for the children at different times. Most recently, Nancy has had the continuity of care. This factor slightly favors Nancy.

¶13. Johnny’s argument regarding the summer of 2013 is simply undeveloped in the record; he seems to base it entirely on assertions made in pleadings rather than evidence submitted at trial. And even if the custody situation prior to trial was the result of an unfair ruling from another court [Fn 2],the Mississippi chancery court entered an order giving Nancy temporary custody more than a year prior to trial. Also, the fact remains that Nancy had de facto care of the children for a significant period of time prior to trial, regardless of whether

[Fn2] It is not clear exactly what occurred in the Alabama court, other than that it eventually ceded jurisdiction to Mississippi.

the way this came about was fair to Johnny or not. The Albright analysis is, after all, intended to guide the determination of what is in the best interest of the children, rather than what is fair to the parents. See Reno, 253 Miss. at 475, 176 So. 2d at 62. We find that the chancellor both accurately and fairly weighed the evidence on this factor.

¶14. Moreover, assuming that continuity of care was neutral or even slightly favored Johnny, it would not necessarily follow that reversible error would result. The chancellor assigned great weight to the facts that Nancy had the better parenting skills and that the respective employment situations favored Nancy, as a school teacher, over Johnny, a truck driver. The chancellor decides how to weigh the Albright factors. See Johnson, 859 So. 2d at 1013-14 (¶36). Parenting skills and employment responsibilities were, in this case, very important factors, and the chancellor’s reliance on them in awarding custody to Nancy was not an abuse of discretion.

I put the most important language in bold for your convenience.

When is a Contract a Testamentary Instrument?

June 7, 2016 § 1 Comment

Rose Greer leased some farmland to Jene and David Nunnery in 2002 for 23 automatically-renewing one-year terms, concluding July 31, 2025. The lease included this clause:

In the event of the death of the Lessor [Greer], this lease agreement shall not terminate[;] rather the rights and obligations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.

On July 31, 2009, Greer executed a will leaving her estate to John Oaks. There was no mention of the Nunnery lease or its provision for Ball.

Greer died in 2010, and Oaks probated the will.

In 2013, Oaks filed an action against Ball to declare the lease void for the reason that it was testamentary in nature and did not meet the statutory requirements for a testamentary instrument. The chancellor ruled in favor of Ball, and denied the relief sought by Oaks. Oaks appealed.

In Estate of Greer: Oaks v. Ball, decided May 3, 2016, the COA reversed. Judge Griffis, writing for the 5-4 majority, analyzed the issue at length, but this portion of his opinion sums it up for our purposes:

¶11. Section 3 of the lease agreement assigns the lessor’s rights to Ball upon Greer’s death.In Buchanan v. Buchanan, 236 Miss. 751, 756, 112 So. 2d 224, 227 (1959), the Mississippi Supreme Court held:

[W]hen an instrument purports to be a deed and is in the words and form of a deed and is acknowledged as such, it should be construed to be testamentary in character and inoperative as a deed of conveyance when, and only when, it affirmatively and clearly appears from the language of the instrument itself, giving due consideration to all its provisions, that it was the intention of the person signing it that the instrument itself would have no effect until his death.

The supreme court further held:

Where an instrument, though in the form of a deed, contains its maker’s provision that it makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, such an instrument is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills.

Ford v. Hegwood, 485 So. 2d 1044, 1045 (Miss. 1986).

The decision goes on to analyze the instrument and concludes that, since it did not meet the requirements of a will, specifically sound and disposing mind, subscription, and attestation, the assignment was invalid.

For practitioners, this case points out a possible pitfall when you prepare similar instruments for your clients.

If you ever find yourself on the defending side of a lease like Greer’s, you can find a cogent argument in Judge Wilson’s dissenting opinion. Lee, Irving, and Fair joined. Greenlee did not participate. Judge Wilson distinguished the warranty deed in the Ford case relied on by the majority from the lease in this case.

MRE Restyle Up for Comment

June 6, 2016 § Leave a comment

This is your last week to comment on the MSSC’s proposed restyle of the rules of evidence. You can access them at this link.

The project was undertaken by the MSSC Advisory Committee on Rules, with a goal of making our MRE conform more closely to the federal rules restyle. No substantive changes were made. Rather, the subcommittee applied principles of restyling applied by the federal panels so as to make our rules clearer, easier to understand, and better organized for clarity.

You can read them and judge for yourself. My opinion is that this restyling will be a major improvement over what we have now, and will aid practitioners and judges in applying the MRE.

Asst. Atty. General Ed Snyder and MCLaw prof. Matt Steffey did most of the heavy lifting, and other subcommittee members assisted.

The Rules Advisory Committee, of which I am a member, has some other big projects in the pipeline. Stay tuned.

“Quote Unquote”

June 3, 2016 § 2 Comments

“Widespread ignorance bordering on idiocy is our new national goal. … The ideal citizen of a politically corrupt state … is a gullible dolt unable to tell truth from [bs]. An educated, well-informed population, the kind that a functioning democracy requires, would be difficult to lie to, and could not be led by the nose by the various vested interests running amok in this country.” – Charles Simic

“The educated differ from the uneducated as much as the living from the dead.” – Attributed to Aristotle

“The mind is not a vessel to be filled, but a fire to be kindled.” – Plutarch



Five Sure-fire Ways to P*** off Your Chancellor

June 2, 2016 § Leave a comment

It should go without saying that chancellors have god-like powers over your cases, and it behooves you (and your client) to respect those powers when it comes to interactions with the court.

There are some irascible chancellors, I will grant you. But in my experience the great majority are sympathetic, patient, focused on doing the right thing the right way, and interested in improving practice in their courts.

So, whether you are dealing with a splenetic judge or one with the disposition of Saint Teresa, you want to be sure you avoid behaviors that will be sure to get you on the chancellor’s bad side.

Here are my top five:

5.   Being chronically late for court. Everyone has occasional emergencies that affect the ability to be on time, but when it’s chronic, it’s an annoyance beyond measure. Your judge may have a higher pain threshold than I, but to me being late merely because you’re late is an ultimate insult not only to the judge, but also to everyone else involved in the case. It communicates that you consider yourself more important than anyone else awaiting your arrival, and I assure you that, in that situation, you will be the only one there who agrees with your opinion. If you find yourself being late more than on rare occasions, you’d best do some rearranging of your priorities and your ways of doing business.

4.  Not learning from your mistakes. It gets tiresome having to deal with the same lawyers making the same mistakes over and over, such as late and incomplete accountings, improper process, failure to comply with discovery orders, and failure to present orders after being ordered to do so, to name only a few. It’s not the judge’s job to pull your irons out of the fire. And if it’s a contested case, it would be improper for the judge to aid one side or the other. If this is your problem, don’t be surprised if one day the judge loses patience, throws her hands up, and says, in effect, get your own self out of this mess; I’m not doing it any more.

3.  Being unprepared. You have to ask the court to delay your divorce or modification hearing to give you time to throw together an 8.05. Or you try to convince the judge to take a particular position, but you don’t have any case law to cite because you haven’t done a lick of research. Or you have to ask for a continuance because your pleadings are not in order. Or you neglected to tell your client to be there for court. These are not only symptoms of unpreparedness; they also indicate lack of competence. Once you convince the judge that you are unprepared and/or incompetent, you can expect that everything you do will be carefully scrutinized, slowing down your ability to get things done for your clients.

2.  Being disrespectful. We all have bad days in court. Those are compounded when the judge has one, too. No matter the outcome, it is your professional duty as a lawyer to suck it up, keep your thoughts to yourself, and show respect. Like a bell that can not be unrung, a snide or flip comment will continue to resonate with your judge long after you regretted saying it. Likewise, being disrespectful of opposing counsel, opposing party, witnesses, and anyone else involved will diminish you, and not the object of your disdain. Arrogance is a trait best left at your office.

1.  Lying. This is the cardinal sin — the one that may earn you years of or even permanent distrust from your chancellor. Never lie even when the truth will hurt. If you’re in the wrong, admit it and ask the court’s indulgence. Lame excuses sound like lies and often are. If you find out that something you represented to the court turns out to be untrue, get with the judge as soon as possible to straighten it out.

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