Some Random Thoughts and Tips on Probate Practice
August 12, 2016 § 1 Comment
Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?
Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.
Here are some thoughts about probate, along with a few tips:
- MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
- UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
- For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).
TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.
TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.
- If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
- There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
- Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
- Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.
The Burn of College Expense
August 11, 2016 § 2 Comments
Decades ago a chancellor in this part of the world was asked why he insisted that his sons pay their own way through college. He replied that he would only do it if a chancellor ordered him to do it. Of course, the twist was that he was never divorced, so no chancellor could ever get involved in that decision-making.
It’s pretty well ingrained in our law now that a chancellor may order parents to contribute to the college expenses of their children post-divorce.
The latest iteration of the principle appears in the recent COA decision in Harris v. Porter, decided July 26, 2016.
In that case, the chancellor ordered Tony Harris to contribute $1,250 a semester to the cost of his daughter, Myrtis, to attend Mississippi State University. The chancellor also increased the child support he pays to his ex-wife, Michelle Porter. Tony appealed, and the COA affirmed. Judge Ishee wrote for a unanimous court:
¶6. Next, Harris argues that the trial court erred in awarding college expenses. Harris points to his financial statements, which he believes shows that there is no disposable income, and argues that Porter did not show evidence to the contrary. Harris further argues that he cannot afford to pay college expenses without significantly affecting his customary lifestyle. Harris explains that he has two young children who live with him and his current wife, and another child attending Alcorn State University. Harris also argues that there was no evidence that Myrtis will thrive in college. Finally, Harris asserts that he wanted to have input as to which college he could afford for Myrtis.
¶7. The Mississippi Supreme Court has held that a child’s decision to attend college may be considered a material change in circumstances justifying child support modification. See Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991). Child-support payments under section 43-19-101 create an award for support that goes toward the child’s basic living expenses such as food, clothing, and shelter. See Nichols v. Tedder, 547 So. 2d 766, 769 (Miss. 1989). Additional expenses, including but not limited to health insurance, out-of-pocket health expenses, transportation, and college expenses, may be properly added to the basic support award. Id.
¶8. One or both parents may be ordered to pay part or all of a child’s college tuition and related expenses. Saliba v. Saliba, 753 So. 2d 1095, 1101 (¶21) (Miss. 2000) (citing Rankin v. Bobo, 410 So. 2d 1326, 1328 (Miss. 1982)). Nonetheless, as Harris asserted, “the parent must also have the ability to pay for the education without affecting his customary lifestyle.” Wallace v. Wallace, 965 So. 2d 737, 745 (¶27) (Miss. Ct. App. 2007) (citation omitted). However, in this case, Harris did not present any evidence of how Harris’s lifestyle would change. Nor can we find anything in the record that supports his claim. As found earlier, the chancery court clearly reviewed Harris’s financial documents and found that Harris was able to help with college expenses. Furthermore, Porter explained that she is seeking financial assistance and Myrtis is applying for scholarships to help with the cost of tuition.
¶9. Porter introduced various awards, plaques, and newspaper clippings regarding Myrtis’s achievements during her high-school career, which led the chancery court to find that Myrtis was an “outstanding young lady.” She clearly showed aptitude for and the potential to benefit from college according to her high-school record. Myrtis was involved in numerous extracurricular activities both at school and in the community. There is ample evidence that Myrtis excelled as a well-rounded student. Her admission to Mississippi State University is one more example of that. While Harris complains that he should have been consulted about which college he could afford for Myrtis to attend, the chancery court’s ruling does not set forth a specific college and it does not prevent Harris from being a part of the decision-making process. [Fn1] We find this argument without merit.
[Fn 1] However, according to the record, Myrtis has been accepted to Mississippi State University and it is her preferred school. Furthermore, we point out that Harris would be paying what amounts to less than fifteen percent of the total cost of tuition. See http://www.admissions.msstate.edu/freshmen/money-matters/#tuition (the 2015-2016 annual cost to attend the school, on average, is about $23,000, which includes room and board, tuition, and out-of-pocket expenses).
As the footnote points out, it’s hard to imagine where Myrtis could have gone off to college that would have cost Tony less than $1,250 a semester. There are plenty of parents around the state under college-support orders who would gladly trade places with him. Speaking personally, as one who put a child through Millsaps College in the 1990’s, I would have in a heartbeat.
Until the nation “feels the Bern” and embraces government-paid college tuition for all, parents will have to continue to experience the burn of college expenses.
This case is just a reminder that guideline child support can be a mere starting point when there are extraordinary expenses of a child that must be satisfied.
Groundless
August 9, 2016 § 6 Comments
Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.
After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.
In her case in chief, Lonnie presented testimony that Les:
- Was uncommunicative, controlling, and belittling.
- Was unwilling to spend time with her or to schedule family vacations.
- Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
- Refused to give her compliments or to acknowledge her contributions to their life.
- Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
- Refused to give her money to buy groceries because he might not like the food she bought.
- Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”
Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.
For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.
The chancellor ruled that Lonnie had failed to prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.
In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.
I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.
What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).
Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”
I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.
People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.
I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.
When Excusable Neglect Isn’t
August 8, 2016 § Leave a comment
We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.
In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.
Later, in early 2016, we noted here that the MSSC had granted cert.
Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:
¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.
The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”
The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.
The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.
One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:
¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.
The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.
“Quote Unquote”
August 5, 2016 § Leave a comment
“Proud, brave, honorable by its lights, courteous, personally generous, loyal, swift to act, often too swift, but signally effective, sometimes terrible, in its action — such was the South at its best. And such at its best it remains today, despite the great falling away in some of its virtues. Violence, intolerance, aversion and suspicion toward new ideas, an incapacity for analysis, an inclination to act from feeling rather than from thought, an exaggerated individualism and too narrow concept of social responsibility, attachment to fictions and false values, above all too great attachment to racial values and a tendency to justify cruelty and injustice in the name of those values, sentimentality and a lack of realism — these have been its characteristic vices in the past. And, despite changes for the better, they remain its characteristic vices today.” – W. J. Cash
“That sinuous southern life, that oblique and slow and complicated old beauty, that warm thick air and blood warm sea, that place of mists and languor and fragrant richness…” – Anne Rivers Siddons
“I’m very Southern in the way I walk in the world. I love to laugh. I love to eat. I love to hug people. But if somebody makes me mad, my neck may roll. I can be aggressive with a Southern twang.” – Katori Hall
ABA Blawg 100
August 3, 2016 § Leave a comment
The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).
If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.
[I am republishing this once each week until August 7]
New Discovered Evidence that Isn’t
August 2, 2016 § Leave a comment
In the divorce action between Paul and Laura Lacoste, the chancellor awarded Laura sole physical and legal custody of their two children, equitably divided the marital estate, and awarded Laura rehabilitative alimony.
After the final judgment was entered, Paul filed a R59 motion claiming that there was newly discovered evidence that: (1) Laura had moved to the Mississippi Gulf Coast, taking the children with her; (2) Laura had cashed out a retirement account, sticking him with a more than $13,000 tax bill; (3) the accounting bill for the 2013 taxes had increased; and (4) his income had decreased. The chancellor ruled that the issues raised in Paul’s motion were more properly modification issues, and denied him rehearing. Paul appealed on this and several other points.
In Lacoste v. Lacoste, decided July 19, 2016, the COA affirmed. Judge Barnes wrote for the majority:
¶55. A motion for a new trial under Mississippi Rule of Civil Procedure 59 based on newly discovered evidence “is an extraordinary motion, and the requirements of the rule must be strictly met.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013). Newly discovered evidence is evidence that existed at the time of trial, but was discovered after trial; it does not include “evidence that did not exist at the time of trial.” In re V.M.S., 938 So. 2d 829, 834 (¶10) (Miss. 2006) (citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990) (stating that authorities interpreting Federal Rule of Civil Procedure 60(b)(3) “seem unanimous in holding that” newly discovered evidence “must have been in existence at the time of trial or at the time of the judgment which is allegedly in need of correcting”)).
¶56. None of Paul’s claims are newly discovered evidence. Laura’s alleged move occurred posttrial. Thus, Laura’s alleged move cannot qualify as newly discovered evidence. The additional tax burden resulting from Laura cashing out a retirement account is likewise not newly discovered evidence. Paul testified at trial that he was aware that Laura cashed out the account in 2013. He testified that he did not know if Laura had withheld taxes when she cashed out the account, but that he realized if she did not, it would “greatly” impact the parties’ tax liability if they filed jointly. Laura admitted at trial to withdrawing the money from her retirement account, and she testified there would be penalties and additional taxes as a result of her doing so. Paul had a CPA whom he typically contacted on a monthly basis who could have investigated the tax consequences of the retirement account’s liquidation. The fact that he failed to request the CPA to do so until after trial does not make this evidence newly discovered. Finally, Paul’s argument that his income had decreased in the first three months of 2014 is not newly discovered evidence, as this did not occur until after trial.
¶57. As to Paul’s arguments regarding Laura’s alleged move, the chancellor recognized his concern regarding this in her opinion, stating, “Paul was concerned about Laura moving from the Madison area to be near her family and friends in the Atlanta or Ocean Springs area.” So the chancellor was aware Laura’s moving was a possibility and was able to consider it when rendering her opinion. Regardless, none of Paul’s assertions are newly discovered evidence, and the chancellor correctly excluded them from consideration posttrial. This issue is without merit.
From this case you can take away at least the following:
- Evidence that is newly discovered must be evidence that was in existence at the time of the trial, but was unknown to or concealed from the movant so that it prevented from having been presented.
- Newly discovered evidence does not include matters which were known to the movant but, for whatever reason, were not presented at trial to the court, or which by due diligence could have been known and presented.
- Facts that arise after entry of the judgment are matters that are properly presented as a contempt or modification.
When is a GAL Required? (Part II)
August 1, 2016 § Leave a comment
Last November, we discussed the COA’s decision in Carter v. Carter, a child-custody modification case in which the chancellor had removed custody from Jennifer Carter because of her squalid living conditions and inattention to the child’s dental care.
Jennifer appealed, claiming that it was error for the chancellor to adjudicate the case without appointing a GAL. The COA affirmed, pointing out that neither Jennifer nor her ex had asked the court to appoint one.
Jennifer filed for cert, which the MSSC granted. Oral argument has been completed, and we are awaiting the court’s decision. Jane Tucker posted on the case with links to the cert petition, supplemental briefs, and video of the oral argument. You can access her post at this link.
Here’s hoping that the high court takes this opportunity to clarify just what allegations or proof are necessary to trigger appointment of a GAl, and how grievous the situation needs to be. As for allegations, Jennifer argued in her cert petition that the COA’s decision imposes too harsh a standard on litigants; in other words, she is arguing that once the proof is in the record the chancellor has a duty to appoint. The question remains, though, how serious the child’s circumstances must be to require a GAL. In his opinion for the COA, Judge Fair wrote that the supreme court has typically drawn the line at fact situations that would trigger youth court jurisdiction, and he found that the facts in Carter did not rise to that level. maybe the court can add some clarity.
The Better Chancery Practice Blog 