BCPB Earns Spot in ABA Journal’s Blawg 100 Listing
November 30, 2016 § 3 Comments
Thanks to you, the Better Chancery Practice Blog has elbowed its way onto the ABA Journal’s Blawg 100, which is the publication’s annual list of the best blogs about lawyers and the law.
You can access the full list at this link.
I consider this quite an honor, since only the best 100, of the more than 4,000 legal blogs recognized by the ABAJ, are listed.
My sincere thanks to everyone who participated in the nomination process, and to everyone who takes valuable time from their day to entertain my musings.
Reprise: Proving Attorney’s Fees
November 29, 2016 § Leave a comment
Reprise replays posts from the past that you may find useful today.
STUNG BY ATTORNEY’S FEES
August 7, 2012 § 1 Comment
The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.
The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.
The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:
¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:
There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).
See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).
¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”
¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).
¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.
The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
When Alimony is Like an Elephant
November 28, 2016 § Leave a comment
Most of you, I am sure, are familiar with the fable of the blind men and the elephant. Six different blind men, for some reason, are asked to feel an elephant and to describe what the creature is like based on their experience. Of course, each one can offer a description based only on his limited groping. One surmises a rope-like creature based on feeling the trunk, another guesses a tree-like creature after feeling the leg, and yet another posits an umbrella-like critter from feeling the ear. And so on. The point being that perception based on limited evidence can be misleading and incomplete.
That takes us to the COA’s decision in Kittrell v. Kittrell, decided October 4, 2016, in which the court was called upon to determine whether the special chancellor erred in concluding that an alimony provision in a PSA was periodic. To set the stage, Judge Lee recited the legal standard and went on to describe the court’s chore:
¶9. “Although a court order imposing alimony must, in general, clearly identify what type of alimony is being awarded and adhere to its traditional characteristics, our ‘Supreme Court has not required consensual support agreements to follow the same terms as for court imposed alimony.’” Id. at 918 (¶30) (quoting Elliott v. Rogers, 775 So. 2d 1285, 1289 (¶15) (Miss. Ct. App. 2000)). “Rather, the Supreme Court has emphasized divorcing parties’ freedom and ‘broad latitude’ to settle the financial aspects of their separation by contract as they see fit[.]” Id.
¶10. It is because of this broad latitude that this Court is faced with the hopeless task of determining whether the alimony provision in Stan and Stephanie’s property-settlement agreement provided for lump-sum or periodic alimony. [Emphasis added]
Hopeless task? Hyperbole, you think? Well, judge for yourself; here’s the PSA provision in question:
Both parties do hereby agree that Stan Kittrell each month shall deposit his monthly retirement check from the Public Employees Retirement System (PERS) into Stephanie Kittrell’s bank account via direct deposit with the monthly amount of $250.00 considered child support and the remainder as alimony. The child support will continue to be deposited monthly until the child’s [twenty-first] birthday or until the child no longer lives with the mother. The remainder of the check shall be considered alimony and shall continue to be paid until the child reaches the age of [twenty-one] or until Stephanie Kittrell remarries. Stan Kittrell shall receive sixty percent (60%) of the [thirteenth] PERS check and Stephanie Kittrell shall receive forty-percent (40%) of the same until such time as the child reaches the age of [twenty-one] or until the child no longer lives with the mother. Stephanie Kittrell by signing this document agrees to pay the house note on the marital home out of the PERS money she receives from Stan Kittrell.
Stan Kittrell hereby relinquishes all rights and benefits to Stephanie Kittrell’s 401k retirement funds. Both parties relinquish any right to bonuses, rewards, or financial settlements of any kind.
Hyperbole? I think not. Here’s how the COA addressed it:
¶18. We also reverse the chancery court’s finding that the alimony provision in Stan and Stephanie’s property-settlement agreement provided for periodic alimony. The alimony provision does not strictly adhere to the traditional characteristics of either periodic or lump sum alimony. See Lowrey [v. Simmons], 186 So. 3d [907] at 919 (¶33) [(Miss. App. 2000)]. Accordingly, we will enforce the provision as it is written. See id. Because Stephanie did not remarry, Stan was obligated to pay alimony until Dylan reached the age of twenty-one on September 17, 2014. And Stan’s thirteenth PERS check would have terminated when Stan was granted custody of Dylan. We remand this case to the chancery court for a calculation of the specific amount of alimony owed as well as costs and attorney’s fees.
I am guessing that this was not the outcome Stan expected when he signed that PSA back in 2005.
When you draft an agreement such as a PSA, keep in mind that it not only has to reflect the parties’ agreement and make sense to them and counsel involved, it most importantly must be clear enough to make sense to others not involved, and particularly to any judge who will later be called upon to construe it. Again : Draft it, and set it aside for a day or so. Then pick it up and read it over again carefully. Does it say what needs to be said? Then re-read it pretending that you know nothing about the negotiations (like a judge has to do). Is it clear from its plain language just what is intended and what is to occur? If it is intended to be periodic alimony, then say so in plain, unmistakable terms. When you leave it to a judge to figure it out later, your client might not get what she thought she bargained for.
This case also involved a claim for termination of alimony for cohabitation. That’s for another day.
Breaching Confidentiality
November 22, 2016 § 1 Comment
Suppose your client gave you her income tax return in confidence. You then make 20 unredacted copies and drive down the street throwing them at passers-by. Have you violated your client’s confidentiality?
Or suppose that your client gave you those same tax returns with the understanding that they would be disclosed in discovery in the course of her divorce. You send them unredacted to opposing counsel in answer to a request for production. Counsel opposite makes a copy for his client, who throws it in the back of his pickup. Later, it blows out as he zooms down the interstate, scattering your client’s name and SSN to the four winds. Have you violated your client’s confidentiality?
Or you simply file those tax returns unredacted on MEC. Have you violated your client’s confidentiality?
I think the undebatable answer in each scenerio is a resounding YES. It is you who chose to send the documents out into the cold, cruel, identity-stealing world unredacted, contrary to MEC Section 9. Remember, MEC says that if you file unredacted documents you have waived confidentiality; did your client authorize you to do that? Did your client even know you were going to do that?
I know, MEC applies only to electronic filings. True. But the principle should be the same in everything you do with your client’s sensitive documents and things, whether in paper discovery, exhibits in court, correspondence, and on and on. Your clients want and expect you to protect their confidentiality.
We get all manner of things attached to motions in this court. Our standard practice is to turn the paperwork over to the staff attorney who then uses the unprinted-on backsides to print internal memos, cases, etc. A few days ago, I finished a memo and noticed that it was printed on the back of a copy of a federal tax return. The names and SSN’s of the taxpayers were unredacted. Those were immediately shredded. Had I not caught that those folks’ names and SSN’s would simply have gone into the trash, and thence to a landfill, perhaps to be picked up by a breeze and deposited into the clutches of a n’er-do-well. Whoever filed that return unredacted is responsible for its consequences.
You Still Can’t Get More Time
November 21, 2016 § Leave a comment
Only last week I posted about situations under the MRCP in which the trial court can not extend deadlines. You can read the post at this link. Among those actions are motions for rehearing under R59(b), (d), and (e).
A savvy lawyer called my attention to the case of Wright v. White, 693 So.2d 898 (Miss. 1997), which includes the following language at p. 903:
The time limit for serving a Rule 59 motion for reconsideration is 10 days after judgment, and that period may not be enlarged except by a request being made within the time period provided and such request being granted by the court. MRCP 59(e); MRCP 6(b). [Emphasis mine]
I would not rely on that language to support a request for an order granting more time for these reasons:
One, R6(b) specifically states that the trial court may extend deadlines in many instances, but ” … it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c), except to the extent and under the conditions therein stated” and
Two, the only action specified in R59 for which a deadline may be extended is the filing of opposing affidavits if the motion is supported by affidavits, as provided in R59(c) and
Three, the rule was amended in 1997 (2 months after this decision) to clarify that the R59 motion must be filed, not served, within ten days of entry of the judgment.
And, just to quibble, it’s a motion for rehearing, not for reconsideration, as we have discussed before. There is no motion for reconsideration under the MRCP.
So, can you get an order extending the time to file a R59 motion and then successfully defend it on appeal? (Remember that a timely R59 motion tolls the running of the time within which to file an appeal). In Wilburn v. Wilburn, 991 So.2d 1185, 1190-191 (Miss. 2008), the MSSC rejected the appellee’s argument that the appeal was untimely due to the untimely filing of a R59 motion. The appellee had not objected to the untimeliness at the trial level. That’s something you might want to keep in mind.
In my opinion, the very best practice is to file your R59 motion no later than 10 days after entry of the judgment, as the rule states. You are playing with fire if you procrastinate and rely on the court to enter an order for more time that in all likelihood will not be worth the paper it is printed on.
Thanks to Attorney Ben Rowley
When You Can’t Get More Time
November 15, 2016 § 1 Comment
MRCP 6(b) gives trial judges pretty much leeway to allow lawyers an enlargement of time to do all manner of things.
That authority does not exist in some situations, though.
As the Advisory Committee Note to R6 points out, there are times when the court can’t enlarge time at all:
Rule 6(b) gives the court wide discretion to enlarge the various time periods both
before and after the actual termination of the allotted time, certain enumerated cases being excepted. A court cannot extend the time: (1) for filing of a motion for judgment
notwithstanding the verdict pursuant to Rule 50(b); (ii) for filing a motion to amend the court’s findings pursuant to Rule 52(b); (iii) for filing a motion for new trial pursuant to Rule 59(b); (iv) for filing a motion to alter or amend the judgment pursuant to Rule 60(b); (vi) for filing a motion to reconsider a court order transferring a case to another court pursuant to Rule 60(c); or (vii) for entering a sua sponte order requiring a new trial pursuant to Rule 59(d).
Notice that all of those matters can directly affect appeal time. You’ve got to get them timely filed, or they’re waived. The court can’t play out more rope for you.
Adverse Possession Nuggets
November 14, 2016 § Leave a comment
If you’ve been a long-time reader, you will recognize that I tend to really like cases that elucidate what must be shown to make an adverse possession case. That’s because, for all the colorful language of the case law about “planting flags” and “unfurling banners,” it can be confoundedly difficult to translate that into what people do in real life.
The recent COA decision in Powell v. Meyer, handed down October 25, 2016, is one of those helpful cases. The facts are pretty typical of an adverse possession case. You can read them for yourself. I’ve extracted some nuggets for you that you might find useful next time you have a case like this.
- ¶18. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) defines adverse
possession as follows:Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full complete title . . . .
We apply a six-part test for determining whether adverse possession has occurred: “for possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Walker [v. Murphree], 722 So. 2d [1277] at 1281 (¶16). The burden was on Meyer to prove each element by clear and convincing evidence. Ellison v. Meek, 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002).
- ¶19. … In regard to the actual or hostile element, “[t]he actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill v. Johnson, 27 So. 3d 426, 431 (¶23) (Miss. Ct. App. 2009). Possession is hostile when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952). … “[T]he mere existence of a fence,” without more, “does not establish that the fence is the
accepted boundary between the properties.” Ellison, 820 So. 2d at 735 (¶16). … - ¶20. In regard to the open, notorious, and visible element, “[t]he mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. …
- ¶21. … To reiterate, even if a party is mistaken as to the calls of his deed, “if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession[.]” Alexander [v. Hyland], 214 Miss. [348] at 357, 58 So. 2d [826] at 829 [(19520]. …
You might want to file those away for future use.
Here the chancellor was affirmed because there was clear and convincing evidence to support each and every one of the six required elements. That’s good lawyering. Not only do you have to have the facts to work with; you also have to make sure that you make a good enough record with sufficient facts to support the judge’s findings.
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