Another Life Insurance Award Reversed

August 30, 2017 § Leave a comment

The fairly commonplace practice of securing alimony awards via life insurance has come under increasing scrutiny. A recent post on the subject is at this link.

You can add the COA’s decision in Griner v. Griner, handed down June 27, 2017, to your collection of cases on point. In that case, the chancellor had ordered Chip Griner to obtain a $1,000,000 life insurance policy based on an award of alimony to his wife, Melanie. On appeal, Chip argued that the parties’ consent to divorce authorized the judge to consider alimony, but not life insurance. Justice Irving wrote for the court:

¶28. We also find that the chancellor operated within the authority granted to him by the parties’ submission of the issue of alimony when he ordered Chip to maintain a life-insurance policy with Melanie designated as the beneficiary. Mississippi Code Annotated section 93-5-23 (Rev. 2013) provides that, when granting a divorce, a chancellor

may, in [his] discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.

Miss. Code Ann. § 93-5-23. This Court has held that “[a]n alimony payor may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” Coggins v. Coggins, 132 So. 3d 636, 644 (¶35) (Miss. Ct. App. 2014) (citations and internal quotations omitted). “Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency.” Id. at 645 (¶37); see also Johnson v. Pogue, 716 So. 2d 1123, 1134 (¶41) (Miss. Ct. App. 1998); Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005).

¶29. While we find that the chancellor was within the authority granted him by the parties when he ordered Chip to maintain a life-insurance policy with Melanie named as the beneficiary, we also find that the amount that Chip was required to maintain—$1,000,000— was unreasonable and excessive. The purpose of requiring an alimony payor to maintain a life-insurance policy with the alimony payee designated as the beneficiary is to protect the vested but unpaid amount of alimony in case of the payor’s death.

¶30. In Coggins, we held that the chancellor erred in his requirement that the husband designate his former wife as the beneficiary to a $175,000 life-insurance policy “to protect against [the husband] defaulting on his $504-per-month alimony payments and then dying before curing the default.” Coggins, 132 So. 3d at 645 (¶38). We reasoned that “[t]his amount of insurance—the equivalent of thirty years worth of alimony payments—assumes not only that [the husband] may fall behind for three decades but also that [his former wife] will experience no material change of circumstances altering or terminating her need for alimony.” Id.

¶31. Here, with respect to the protection of the alimony awarded to Melanie, the chancellor stated in the modified order:

The [c]ourt failed [in its final judgment] to ensure that the amount of alimony awarded to Melanie [was] covered by insurance and hereby directs Chip to change the beneficiary on his $1,000,000.00 life insurance policy to make the same payable to Melanie for the performance of the [j]udgment of the [c]ourt in case of Chip’s death.

As noted earlier in this opinion, the chancellor awarded Melanie periodic alimony of $3,000 a month, as well as lump-sum alimony of $480,000, or $4,000 a month for ten years. Although Chip was allowed to pay the lump-sum alimony in installment payments, the full amount vested immediately. Only a $480,000 policy would be required to guarantee payment of the lump-sum alimony. If Chip immediately paid his lump-sum-alimony obligation in a single payment, he would have to fail making his monthly periodic-alimony payments for more than twenty-seven years to accumulate a $1,000,000 arrearage. And if Chip chose to pay his lump-sum-alimony obligation in installment payments, along with his
periodic-alimony payments, and failed to make any payments for ten years, he would be in arrears by only $840,000, not counting any accrued interest. It is unreasonable to assume that Melanie would allow the payments to get that far behind before seeking judicial redress. Moreover, it is not unreasonable that Melanie may remarry, at which time Chip’s periodic alimony obligation would cease. Since we are already reversing on other grounds, we direct that on remand the chancellor take a new look at the amount of life insurance that will be required to protect Melanie’s alimony interest.

Again, the amount of life insurance ordered needs to be enough to protect any arrearage that might reasonably be expected to accrue, and no more.

Some Notes on Dennis

August 29, 2017 § 1 Comment

Yesterday we visited the case of Dennis v. Dennis, in which the MSSC upheld the self-imposed obligation of a step-great-grandfather to pay child support for a 12-year-old child who refused to have a relationship with him.

A few observations:

  • Even if Dennis made a severe error in judgment by agreeing to pay child support on the mistaken belief that he was required to do so, that will not get him termination of his child support obligation. The court can modify only upon a showing of a material change in circumstances.
  • Parties are free to agree to all sorts of things in a PSA that a court could not impose on them in a contested framework. For instance, the husband could agree to provide college support until the child attains age 25; no judge could order that outside the parties’ agreement. A party could agree to provide health insurance for step-children to a certain age; again, something no chancellor could unilaterally order. Here, Dennis agreed to support JRH, legal obligation or none. That agreement is enforceable under this case and long-standing authority.
  • The dissent argues that the chancellor may only approve agreements for support of the children of the parties, per MCA 93-5-23 (and 93-5-2). The majority looked to the Mississippi Constitution as the source of the chancellor’s authority. Taking either route, however, I think the fact that Dennis voluntarily took on custody of JRH vested him with responsibilities under the law that could have and should have been addressed in the divorce. Dennis should not be allowed to extinguish his obligations to the child via divorce.
  • To tag onto the above, although the statutes refer to the children of the marriage, there is nothing in the statutes that prohibits the parties from agreeing to support other children, or even other adults. The cases that have analyzed the parties’ negotiations and agreement-making in the context of irreconcilable-differences divorces (including this one) all resonate with the theme that the parties should be free to make any agreement that makes adequate and sufficient provision for settlement of property and support of children. I argue that the wider the latitude given the parties to negotiate the lesser the likelihood that the familiar and all-too-common “divorce blackmail” phenomenon can be brought to bear.
  • The fact that the natural parents continue to have a support obligation to JRH, and continue to visit, also avail Dennis nothing. He agreed to the arrangement, self-imposing a support duty parallel to the parents’.
  • And Dennis’s agreement to much more, probably, than what the judge would have imposed on him in the custody matter were it contested makes him a poster child for litigants like him who eschew legal advice for expediency. Sans fraud that can’t be undone.
  • As for the hostility of JRH, this case is right in line with the many cases that have dealt with the phenomenon. The facts must be extreme and the parent seeking to invoke it must not be at fault. To those parameters you can add, thanks to Dennis, that the age and maturity of the child must be taken into account.

The Duty to Pay Child Support for a Step-Great-Grandchild

August 28, 2017 § 1 Comment

Thomas Dennis (Dennis) and Sheila Sims (Sims) married in 1994. Sheila had a daughter before the marriage, Renee Wright. Renee had a daughter, Courtney. Courtney had a child, JRH. Thus, JRH is the step-great-granddaughter of Thomas.

In 2005, DHS became involved when JRH’s parents got into legal trouble. In order to keep JRH out of “the system,” Dennis and Sims filed a petition for custody in chancery court. All parties agreed for the Dennis and Sims to have custody, with the parents having visitation rights, and the parents agreed to pay modest child support. The chancellor approved the agreement in March, 2006.

Six months later, Dennis and Sims separated. In 2008, Sims filed for divorce, and on June 23, 2009, the court granted a divorce on the ground of irreconcilable differences. The PSA incorporated into the divorce judgment provided that Sims would have sole custody of JRH, and that Dennis would pay her $400 a month in child support. The agreement recited that child support was to continue until:

” … (1) the minor child marries; (2) the minor child enlists in any branch of the armed services; (3) the minor child is no longer attending school on a full-time basis prior to the age of twenty-one years; (4) the minor child reaches the age of twenty-one years; or (5) at any time that a court of competent jurisdiction shall change, alter, modify, or terminate this obligation.”

Over time following the divorce, JRH and Dennis became estranged to the point that JRH refused to have anything to do with Dennis. Sims refused to make JRH have any contact with him.

In 2015, Dennis filed a petition to modify the custody and support agreement, asking to relinquish custodial rights to JRH and to terminate child support. He pled that he (a) “wrongfully believed” in the divorce that he had some legal duty to pay child support, (b) that he had never developed any genuine relationship with the child, (c) that the child refused to have a relationship with him, and (d) that the natural parents still exercised visitation and had a child support obligation for the child.

After a hearing, the chancellor denied Dennis any relief. He ruled that there had been no material change in circumstances, and that JRH at only 12 years of age had no appreciation of the legal significance of the refusal to have a relationship. Dennis appealed.

In Dennis v. Dennis, decided August 3, 2017, the MSSC affirmed. In its opinion, the majority acknowledged that a person acting in loco parentis is not obligated to support a child once the relationship has ceased, in the absence of consanguinity, legal adoption, or the knowing and voluntary assumption of the obligation. Williams v. Williams, 843 So.2d 720, 723 (Miss. 2003). The court’s opi nion, written by Justice Chamberlin, went on to distinguish Dennis’s situation:

¶14. The analysis, however, does not end here under the facts of this case. Here, Dennis agreed to provide child support for J.R.H. in the Child Custody and Support and Property Settlement Agreement incorporated into his irreconcilable-differences divorce decree. Therefore, the issue is not whether Dennis has a statutory duty to pay child support, but rather whether he has a quasicontractual obligation to do so. “We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted the child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Williams, supra]. at n.1 (citing NPA, 380 S.E.2d at 181) (emphasis added).

¶15. In Mississippi, one of the steps parties must take to obtain an irreconcilable differences divorce is to enter into a written settlement agreement that provides “for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties.” Miss. Code Ann. § 93-5-2(2) (Rev. 2013). The parties may provide the chancellor with such an agreement or, if the parties cannot agree as to certain issues, consent in writing to the divorce and allow the chancellor to decide the contested issues. See id.; see also Miss. Code Ann. § 93-5-2(3) (Rev. 2013). The chancellor then determines whether the terms of the agreement “are adequate and sufficient.” Id. In
West v. West, this Court emphasized that these “[S]ettlement agreements entered into by divorcing spouses and judicially approved under our Irreconcilable Differences Divorce Act become a part of the decree and enforceable as such as though entered by the court following contested proceedings.” When the Irreconcilable Differences Divorce Act has been complied with, the custody, support, alimony, and property settlement
agreement becomes a part of the final decree for all intents and purposes. If the agreement is sufficient to comply with the statute, that is enough to render it a part of the final decree of divorce as if the decree had been rendered by the chancery court following a contested divorce proceeding.
“[P]roperty settlement agreements are contractual obligations.” The provisions of a property settlement agreement executed prior to the dissolution of marriage must be interpreted by courts as any other contract. In East v. East, 493 So. 2d 927, 931–32 (Miss. 1986), we held “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” West v. West, 891 So. 2d 203, 210 (Miss. 2004) (internal citations omitted).

¶16. This case is, to an extent, similar to Lee v. Lee, 12 So. 3d 548 (Miss. Ct. App. 2009). In that case, the Lees were married in 1994. Lee, 12 So. 3d at 549. During their marriage, the wife gave birth to two children. Id. In 2004, the husband “had a home DNA test performed to determine whether he was [the second child’s] biological father.” Id. The test showed a zero percent chance that he had fathered the second child. Id. The next year, however, the Lees swore that both children were born to the marriage in their joint bill for divorce and the husband agreed to pay child support for both children in the child-custody and settlement agreement. Id. Two years after the divorce was granted, the husband petitioned the chancellor “to reverse the determination that he is [the second child’s] biological father and release him of all parental responsibilities, including child support, as to [the second child].” Id. The chancellor denied the husband’s request. Id.

¶17. The Court of Appeals unanimously affirmed the decision of the chancellor. Id. at 552. The court reasoned that the husband “knew a year before the judgment of divorce was entered that [the second child] was not his child. Despite this knowledge, he voluntarily agreed to support [the second child] and to exercise parental visitation with her.” Id. at 551 (emphasis added). The Court of Appeals distinguished Lee from Williams, where this Court allowed a man to discontinue his child-support payments when he determined, after his divorce, that he was paying support for someone who was not his child. Williams, So. 2d at 721, 723.

¶18. As in Lee, the evidence shows that Dennis knowingly and voluntarily agreed to pay child support for J.R.H. even though he knew he was not the child’s father. [Fn omitted] Though Dennis claims he wrongfully believed he had a duty to support J.R.H., the Agreement states that “Husband and Wife each fully understand the terms and conditions of this Agreement and believe it to be just, fair, adequate, and reasonable . . . .” Under the section titled “VOLUNTARY EXECUTION,” the Agreement states that “[e]ach party acknowledges that he or she has read this Agreement in its entirety, understands its terms, consents to its terms, and enters into this Agreement voluntarily of the uses and purposes therein stated.”

¶19. As mentioned above, these child-custody and property-settlement agreements are quasicontracts in which both spouses consent to certain terms in order to obtain an irreconcilable-differences divorce. Thus, we find that a bargained-for exchange occurred whereby Dennis got something in return for paying child support: a divorce. Even more, this Court has stated:

In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990) (emphasis added) (citations ommitted [sic]).

¶20. Under the facts of this case, we find that Dennis voluntarily agreed to pay child support for J.R.H. We disagree with the dissent that a chancellor does not have the authority to accept a settlement agreement that governs child-support payments for a child not of the marriage. A chancellor’s power to accept such an agreement is granted by Section 159 of the Constitution. Miss. Const. art. 6, § 159. While a chancellor’s power is codified by statute, we consistently have held that a chancellor has broad discretion over child-support agreements. Short v. Short, 131 So. 3d 1149, 1151 (Miss. 2014). Further, a chancellor’s discretion extends to matters that are not codified. See Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (recognizing the doctrine of in loco parentis within the child-custody context).

That takes care of the argument that Dennis had no legal obligation to the child, and thuse should be relieved. What about his argument that the original agreement should be modified to terminate support due to the child’s refusal to have a relationship? Here’s how the court addressed it:

¶21. Notwithstanding their contractual nature, child-support and property-settlement agreements may be modified when there is an after-arising material or substantial change in the circumstances among the parties. See Shipley v. Ferguson, 638 So. 2d 1295, 1298 (Miss. 1994). Dennis next argues that J.R.H.’s refusal to see or speak to him constitutes clear and extreme conduct that entitles him to terminate his support obligations. We disagree.

¶22. In Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991), this Court stated that “[t]he amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent.” Later in that opinion, however, this Court recognized that a material change in circumstances could arise from a minor child’s actions toward a noncustodial parent which would allow the parent to terminate his or her support obligations. Id. “[A] minor child as young as fifteen years old could forfeit his support from the noncustodial parent through his actions toward that parent, but those actions must be clear and extreme.” Marshall , 859 So.2d at 389-90 (citing Caldwell, 579 So. 2d at 548) (emphasis added).

¶23. In Roberts v. Brown, an eighteen-year-old daughter testified “that she did not love [her father], that she did not want to visit or communicate with him, that she had had time to visit him but chose not to, and that if the court ordered her to visit her father, she would not do so.” Roberts v. Brown, 805 So. 2d 649, 650 (Miss. Ct. App. 2002). Even more, the daughter previously had accused her father of rape, a charge of which the father was later acquitted. Id. at 650-51. The Court of Appeals found that the conduct of the daughter was clear and extreme conduct that justified the termination of the father’s support obligations. Id. at 653-54.

¶24. We hold that J.R.H.’s current refusal to see or speak to Dennis is not the type of clear and extreme conduct envisioned in Caldwell or shown in Roberts, especially in light of the child’s age and Dennis’s alleged statement. Though it is undisputed that J.R.H. currently is unwilling to have a relationship with Dennis, Sims testified that Dennis told J.R.H. that he was happy that the child’s grandmother had died. The chancellor also noted that J.R.H. was only twelve years old when this case was in the chancery court; therefore, J.R.H. would have been even younger when this alleged statement was made. If Dennis indeed made these statements, it would be unjust for him now to take advantage of such fact. At this time, the record does not indicate that the chancellor manifestly erred in his Caldwell analysis. [Fn omitted]

A few observations tomorrow.

Reprise: What You Need to Know Before You Draft that PSA

August 25, 2017 § Leave a comment

Reprise replays posts from the past that you might find useful today.

Before You Draft that PSA …

May 6, 2015 § 3 Comments

Suzie drops by, writes you a check for your retainer and court costs, and fills you in on the terms of the parties’ agreement to get an irreconcilable differences divorce. She hands you a folded sheet of notebook paper with bullet points that read like, ” … Joe will get his truck and pay for it, and I will get my car and pay for it,” and ” … Joe will pay me $5,000 from his retirement account,” and “Suzie will get 1/2 of Joe’s retirement with Ajax Lightning Rod Corp.”

So, what do you do next?

If your answer was to hand the paper to your secretary to start working on a draft, you are wrong. As in deeply, malpracticedly wrong.

The correct answer is that you need a LOT more information before you commence that draft. Consider:

  • What kind of retirement account is the $5,000 going to come from, and when it is it to be paid? If the account is a defined contribution plan, such as IRA or 401(k), a lump sum can be paid if done properly. If, on the other hand, it is a defined benefit plan, such as most pension plans, she could only get the money in the form of an income stream at the time of Joe’s eligibility for retirement.
  • If that retirement plan that is going to fund the lump-sum payment is PERS or military retirement, you can’t dip into it to withdraw cash. The only way to access PERS benefits is to retire and begin drawing a monthly benefit, or to leave employment and get a cash payout.
  • What are the actual names of the retirement accounts? You are asking for trouble if you don’t use the exact name of the accounts, such as “Ajax Lightning Rod Corp. Employee Benefit Program 51-014,” or “Joe Blow IRA Account no. 700-092108, Skinflint Bank & Trust, Lucedale, MS.” Why? Because people have a tendency years after the fact to lose their memory of exactly what it was they agreed to do, and that detail nails down exactly what that agreement was. Not only that, but later when you draft any necessary QDRO, you will need that exact information.
  • Do not lift a finger to draft that PSA until you hold in your hand the most recent statements from all of the retirement accounts. Just because someone tells you they can do something does not mean they can. Also, those statements will have most, if not all, of the information you will need to draft the retirement provisions of the PSA.
  • Make sure you specify the exact date of division. For example, “Suzie shall receive an amount equal to one-half of the account balance as of January 15, 2015 …” The date by which the division is to be accomplished is also critical.
  • Spell out who has the responsibility to do what. If Joe is to accomplish all of this, make sure the agreement says that. If someone is going to hire a financial advisor or lawyer to draft a QDRO, who will pay the expense? Some plans actually charge fees — as much as several hundred dollars — to process divisions. Who will pay?
  • Address who will bear the tax responsibility for his or her share of the division. Remember that IRA and 401(k) divisions are taxed as income, plus a 10% penalty. If that $5,000 payment is made, will Suzie’s share be reduced by 38%, or will Joe bear that burden? Remember that Suzie can avoid any taxes by rolling the money over into her own qualified account.

The most recent object lesson in how not to handle a retirement division is in the case of Miles v. Miles, about which I posted at the link. You don’t want that to happen to you. As I said before, you need to educate yourself about retirement accounts and put some thought into the most effective way to draft a provision that will protect your client and successfully accomplish what she wants to do.

Some of the information in this post is derived from a presentation by Michael D. James of Legacy Wealth Management Group, Hattiesburg, to the Conference of Chancery Judges in April.

Procedural Obstacles in a Suit to Quiet and Confirm and to Remove Clouds from Title

August 23, 2017 § Leave a comment

Merle George Smith, Jr. borrowed some money in 1999 and gave it to his dad, Merle George Smith, Sr., to purchase a lot and mobile home. The deed conveyed the property to “Merle George Smith.”

Soon after, Merle, Sr. allowed Carla Ann Pettigrew to move in with him, and she was his live-in companion until he died in 2012. In 2011, Merle, Sr. conveyed the property to Carla, reserving a life estate.

In 2014, Merle, Jr. filed suit to cancel the 2011 deed, and to confirm title in himself. Carla appeared pro se.

Following a hearing, the chancellor ruled that Merle, Jr. would be denied any relief because he did not occupy the property and it was not unoccupied, and because he had failed to deraign title showing that he had perfect title. The judge also found that Merle, Sr. — not Jr. — was the person to whom the grantors had conveyed the property in 1999. Merle, Jr. appealed.

In the case of Smith v. Pettigrew, decided July 18, 2017, the COA affirmed. Judge Ishee’s opinion on the issue of possession:

¶14. On appeal, Merle Jr. argues that the chancellor erred in finding that Merle Jr. was precluded from suing Carla—to confirm title—because she, and not he, possessed the property. Specifically, Merle Jr. asserts that in making her determination, the chancellor relied on the wrong statute.

¶15. Under Mississippi Code Annotated section 11-17-29 (Rev. 2004), to have title confirmed, the claimant must either possess the property or the property must be unoccupied. See also Dixon v. Parker, 831 So. 2d 1202, 1204 (¶8) (Miss. Ct. App. 2002).

¶16. Merle Jr. argues that the chancellor should have relied on Mississippi Code Annotated section 11-17-31 (Rev. 2004), which he argues stands for the proposition that one does not have to possess the property to bring an action to confirm title. Merle Jr.’s reliance on this statute, however, is misplaced. Section 11-17-31 provides that the real owner of property may bring an action in chancery court to have a “conveyance or other evidence or claim of title cancelled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not . . . .” Id. (emphasis added). Merle Jr. conflates these separate and distinct causes of action. To be sure, section 11-17-31 applies to suits to cancel title, but section 11-17-31 does not apply to suits to confirm title. And while it is true that Merle Jr. would not have to be in possession to bring a suit to have title canceled, he would have to possess the property, or the property must have been unoccupied, to bring a suit to confirm title.

¶17. In her opinion, the chancellor found that Merle Jr. was precluded from bringing a suit to confirm title because he did not possess the property and the property was not unoccupied. We agree. The record shows that Merle Jr. testified that he had never possessed the property. Instead, Carla had lived on the property since Merle Sr. conveyed the property to her through a warranty deed. As a result, we do not find that the chancellor erred in finding that—because Merle Jr. did not possess the property, and because the property was occupied by Carla—Merle Jr. was precluded from bring a suit to confirm title. This issue is without merit.

On the issue of deraignment:

¶18. Next, Merle Jr. argues that the chancellor erred by finding that Merle Jr. failed to meet his burden of proof to deraign title—showing perfect title in himself—in his suit to remove clouds.

¶19. “In all suits to confirm title or to remove clouds it is the duty of the complainant to deraign title.” Russell v. Town of Hickory, 116 Miss. 46, 52, 76 So. 825, 825 (1917). The claimant may bring such a suit against someone in possession. Dixon, 831 So. 2d at 1204 (¶8) (citing Broome v. Jackson, 193 Miss. 66, 72, 7 So. 2d 829, 831 (1942)). “The complainant . . . has the burden of showing perfect title in himself.” Culbertson v. Dixie Oil Co., 467 So. 2d 952, 954 (Miss. 1985). But where the title of the parties came from a common source, complete deraignment is not required. Warren v. Clark, 230 Miss. 873, 94 So. 2d 323, 328 (1957).

¶20. On appeal, Merle Jr. argues that he was not required to deraign title because Carla and he claim title from a common source—the Youngs. We disagree. Addressing common source, the our supreme court has held that “[w]hen . . . the defendant justifies his possession by showing that he holds [title] under another deed than that shown by the plaintiff, the effect of the proof of title from a common source is destroyed, and the plaintiff is put to the proof of his title without regard to the common source of title.” Hughes v. Wilkinson, 28 Miss. 600, 606 (1855). Here, Merle Jr. claimed title under a deed from the Youngs; while on the other hand, Carla claimed title under a deed from Merle Sr. These are separate and distinct deeds—the source was not the same. Consequently, Merle Jr. was required to deraign his title, and the chancellor found that he failed to do so.

The COA’s opinion at ¶12 points out that the deraignment issue was addressed by the judge even though it “never arose at trial.”

Finally, the opinion took up Merle, Jr.’s claim that the 1999 deed was intended to be to him:

¶21. Additionally, Merle Jr. argues that the chancellor erred in finding that it was Merle Sr., and not Merle Jr., to whom the Youngs conveyed the property. We disagree. First, the record shows that Young testified that even though the deed used the name “Merle George Smith” it was his intent to convey the property to Merle Sr. Second, while Merle Jr. might have provided the money for the transaction, the record shows that it was Merle Sr. who provided the check to Young as payment for the property. In fact, Young testified that up until the day of the court hearing in 2016, he had never met Merle Jr. And third, the record shows that despite Merle Jr.’s claim to the property, he had never paid any property taxes on it, and had never paid for the maintenance or upkeep of the property.

¶22. Merle Jr. attempts to thwart the chancellor’s findings by highlighting the fact that he paid for the property, and that the title was sent to his place of residence. Merle Jr. argues that this was undisputed proof of his alleged agreement with his father. Yet after consideration of all of the testimony, the chancellor found Merle Jr.’s argument unpersuasive. That said, there is nothing in the record to allow us to find that the chancellor’s conclusion was clearly erroneous.

Two procedural hurdles, (1) possession or unoccupancy and (2) perfect title, tripped up Merle, Jr. in this case. It was his duty to establish both, and he fell short.

Pleading Contempt

August 22, 2017 § Leave a comment

What you ask for in your pleadings will determine what the judge can award. So you need to be sure you’re asking for the right thing.

A recent example is the case of Fox v. Fox, decided July 18, 2017, by the COA. At the trial level, the judge found Tasha Fox in civil and criminal contempt for refusing visitation to her ex, William. Judge Fair’s succinct opinion for the COA reversed the chancellor’s ruling:

¶6. The record reflects that the chancellor found Tasha to be in both civil and criminal contempt for her refusal to allow William visitation under the April 2015 order. The chancellor sentenced Tasha to three days’ imprisonment, suspended on the condition that she surrender the child to William for a two-week visitation in July 2016. Tasha does not contest the finding of civil contempt.

¶7. On this point, we agree: William’s petition only alleged civil contempt, and Tasha was not afforded any of the procedural protections required to support a conviction of criminal contempt. See In re McDonald, 98 So. 3d 1040, 1042-45 (¶¶4-12) (Miss. 2012). We vacate the chancellor’s finding of criminal contempt.

Since William had prayed only for a finding of civil contempt, that was all he should have gotten. Tasha was not put on notice by the pleadings that she was in jeopardy of a criminal contempt ruling at the hearing, and notice was required. Here are the basics that you need to know about contempt:

  1. Civil contempt is designed to coerce a party into complying with a court order. The burden of proving civil contempt is by clear and convincing evidence. In civil contempt, the guilty party is said to “hold the keys to the jail,” because he or she can gain release immediately simply by complying with the court’s orders. The commitment order typically says that the defendant is jailed until he or she purges him/herself of contempt by complying.
  2. Criminal contempt is punitive, and is intended to punish non-compliance. The burden necessary to prove criminal contempt is beyond a reasonable doubt. Incarceration may not exceed 30 days for each offense. MCA 9-1-17.
  3. Direct criminal contempt is based on actions that occur in the presence of the judge, and may be dealt with by the judge summarily and immediately, and without notice. An example might be a party cussing out the judge to her face in open court. Incarceration may not exceed 30 days for each offense.
  4. Constructive criminal contempt is contemptuous conduct that occurs outside the presence of the judge. It requires a pleading specifying the conduct complained of, notice, and an opportunity to be heard. If the judge initiates the action, the judge must recuse and allow the matter to be heard by another judge. See McDonald, supra.

In Tasha’s case, civil contempt would probably not have accomplished much. After the judge announced his findings, she could simply have said that she was ready to comply, and that would have ended that. This was probably a chronic problem that the chancellor was trying to stop by sending Tasha a memorable message.

Had Tasha’s attorney thought it through, he might have realized that it’s best to ask always for civil and criminal contempt. That way, the judge has the latitude to address the problem in the most effective way.

Dismissal with Bite

August 21, 2017 § Leave a comment

Leesa McCharen was divorced from Judson Allred, III, in 1994. In 2012, Leesa sued Judson for arrearages in medical insurance premiums, private school and private college tuition, and various other claims, totalling more than $530,000. Her two children were 24 and 27 years old, respectively, at the time of her suit.

A year of frenzied litigation ensued, in the course of which Leesa’s claims shrunk to around $136,000. Leesa’s last pleading was filed August 12, 2013. On October 1, 2013, Judson filed a motion to dismiss for failure to join the two daughters as necessary parties, and the court apparently ordered Leesa to join them, although no order was entered. Nothing further happened of record, until …

On June 1, 2015, the chancery clerk issued a R41(d) notice. No response from Leesa. The court dismissed the case by order entered July 9, 2015.

On August 7, 2015, Leesa filed a motion to reinstate the case. There were some fruitless negotiations between attorneys about agreeing to a reinstatement. Nothing else transpired until …

February 25, 2016. On that date, the chancellor held a hearing at which Judson did not appear. Leesa argued that the clerk had mis-styled the case, causing her failure to react. The chancellor reinstated the case. Then, on April 28, 2016, Judson discovered the reinstatement when he was served with discovery requests in the revenant case. He responded with a motion to set aside the order. On May 17, 2016, in a proceeding that the chancellor deemed to be a R60 motion, he dismissed Leesa’s case without prejudice.

In the case of McCharen v. Allred, handed down August 1, 2017, the COA affirmed. Judge Fair wrote for the unanimous court:

¶8. The trial court has the inherent authority to dismiss an action for lack of prosecution. Wallace v. Jones, 572 So. 2d 371, 375 (Miss. 1990). We apply a substantial evidence/manifest error standard of review to the trial court’s grant or denial of a motion to dismiss pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. Ill. Cent. R.R. v. Moore, 994 So. 2d 723, 733 (¶30) (Miss. 2008). Also, we will not reverse the trial court’s denial of relief from judgment pursuant to Rule 60 of the Mississippi Rules of Civil Procedure unless the trial court has abused its discretion. Harrison v. McMillan, 828 So. 2d 756, 773 (¶51) (Miss. 2002).


¶9. Mississippi Rule of Civil Procedure 41(d)(1) states that the “case will be dismissed by the court for want of prosecution unless within thirty days following said mailing [notifying the attorneys the case will be dismissed], action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case.” Leesa left her case dormant for almost two years. As a result, the clerk filed a motion to dismiss on June 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[i]f action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.” M.R.C.P. 41(d)(1) (emphasis added). So on July 9, 2015, the court entered an order to that effect. Twenty-nine days later, Leesa filed a motion to reinstate the case.

¶10. The court originally granted Leesa’s motion, presumably because neither Judson nor his counsel was present at the February 2016 hearing. But after listening to Judson’s argument at the May 2016 hearing, the chancellor found no good cause had been shown and dismissed the case without prejudice under Rule 60(b)(6). In doing so, he addressed Leesa’s claim that she did not recognize the motion to dismiss, styled “Moore v. Crim”:

[Leesa’s argument that the clerk failed] to properly docket [the case] is a red herring. It’s pretty much clearly docketed as this case . . . . (T)he clerk may have reversed the order of the names, but, goodness gracious, the last name “Allred” leads in both reference to plaintiff and defendant, so I don’t think you can possibly make that argument with a straight face.

¶11. On appeal, Leesa abandons her sole argument from the trial court and instead argues that: (1) prior to dismissal, the statute of limitations of Leesa’s claim had expired; and (2) Judson delayed litigation with frivolous motions. It is well established that this Court will not consider issues raised for the first time on appeal. Fowler v. White, 85 So. 3d 287, 293 (¶21) (Miss. 2012). Thus, we decline to address Leesa’s current arguments.

¶12. Rule 60(b)(6) allows a judge the opportunity to relieve a party from a final judgment for any justifiable reason. M.R.C.P. 60(b)(6). After careful review of the record, we find the chancellor acted within his discretion in finding that Leesa failed to show any compelling reason for her delay in prosecution. Accordingly, we affirm the chancellor’s order setting aside the order reinstating the case.

Pretty straightforward, even though the procedural path was convoluted.

When you receive a 41(d) notice, you need to file something of record that will have the effect of advancing the case on the docket. A previous post about what action you need to take is at this link. A letter to the clerk will not do the job. Ignoring it will not make it go away. Some chancellors (I included) take the position that once the case is dismissed, it can not be “reinstated;” the only possibility for revival being a timely-filed R60 motion, which requires that you meet its criteria.

Morris Bart: Superhero

August 18, 2017 § Leave a comment

If you’re not reading the Lowering the Bar blog, you are seriously deprived in the legal humor department. I found this gem while randomly puttering around the site recently …

Toddler Enjoys Lawyer-Themed Birthday Party

Well, this seems to have happened in January but didn’t receive the publicity it deserves until the WSJ’s Law Blog covered it recently. Obviously I need better sources in Prairieville, Louisiana.

That’s the home of the Dobra family, whose youngest member apparently watches a disturbing amount of daytime TV, because according to his family two-year-old Grayson is an enormous fan of plaintiffs’ lawyer Morris Bart—or at least his TV ads:

“Before he could walk or talk, every time the Morris Bart commercial would come on, he was just fixated,” [Grayson’s mom] says. “You couldn’t talk to him. You couldn’t do anything with him. He would just sit and stare at the TV. You could call his name, give him a toy. He didn’t care. He just wanted to watch the Bart commercial. He’s been that way ever since, and when he started talking he would say, ‘One call’ or ‘Bart, Bart, Bart, Morris Bart, Morris Bart.’

“They were not his first words, but they were a close second and third,” says Dobra.

So as Grayson’s second birthday approached, the family had a ready-made idea for a birthday-party theme.

His mom even contacted Bart’s office, asking if he might be able to make an appearance. The local paper says the firm’s marketing director initially didn’t think the request was for real, which is not surprising because it absolutely seems like something you might see in The Onion. (It isn’t. I checked.) But Ms. Dobra was able to convince them, and while Bart couldn’t make it himself he sent the kid a signed picture, a T-shirt and a variety of other goodies. “They were so nice about the whole process,” she said. “They never once said, ‘You’re crazy. Leave us alone’ or anything like that.”

BartcakeNeither did the bakery who made them this cake.

Grayson is said to have loved the party, although his mom admitted he was “kind of shocked” by the life-size cardboard cutout of Morris Bart when he unwrapped it. He seems to have gotten over that, although I don’t think we’ll know for sure unless we have a chance to talk to his therapist in a couple of decades. For now, though, he’s fine.

“He still loves his Morris Bart shirt,” [his mom] says. “If you put it on him, you’d better not try to take it off. He will throw a fit. He has his two photos on the nightstand, and he likes to give Morris Bart a kiss goodnight sometimes. He is literally obsessed with Morris Bart.”

Well, he’s probably fine.

Ask the Answer Man

August 16, 2017 § Leave a comment

Dear A.M.: I keep seeing PSA’s , including mine, that require the parties to pay for “extra-curricular activities.” Does anybody know what that includes?

A.M.: The COA does! In Thomas v. Crews, 203 So.3d 701 (Miss. App. 2016), the COA held that the term refers to activities sponsored by and usually held at a school, but that are not part of the standard curriculum. By that I take it that playing on the school basketball team would be covered, but that playing on a City Parks and Recreation basketball team would not be.

Dear A.M.: My chancellor will not make modification of child support retroactive to the date of filing. Isn’t that required now (I’m not talking about DHS cases)?

  A.M.: Upward modification is entirely discretionary with the chancellor, per MCA 43-19-34(4), which states that “An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.” That word “may” means “entirely discretionary.” The same section prohibits retroactive downward modification.

Dear A.M.: In a trial recently after everyone rested the chancellor kept the record open and appointed a local appraiser, saying she was dissatisfied with the parties’ testimony about valuation of a business. Can she do that?

A.M.: Are you serious? She did, so she surely can. Does she have the authority to do it? Yep. Lacoste v. Lacoste, 197 So.3d 897 (Miss. App. 2016).

Dear A.M.: I need to register a foreign custody order in Mississippi. Which is the proper court?

A.M.: If you register it in any court other than chancery, it won’t be effective. Edwards v. Zyla, 207 So.3d 1232 (Miss. App. 2016).

Dear A.M.: My client wants me to file for modification to allow him to claim the children as dependents for tax purposes because it will free up income so he can pay his child support, which is in arrears. Is there a case that supports his position?

A.M.: There is a case that says he doesn’t have a leg to stand on: Neelly v. Neelly, 213 So.3d 539 (Miss. App. 2016).

Dear A.M.: Does emancipation have to be pled as an affirmative defense in a contempt case?

A.M.: Affirmative defenses do not have to be pled, per MRCP 81. Oster v. Ratliff, 205 So.3d 1149 (Miss. App. 2016).

Dear A.M.: I settled a case a couple of weeks ago, and the attorneys and clients signed off on the agreed judgment. Now the attorney on the other side has filed a notice of appeal from that judgment. That doesn’t sound kosher to me.

A.M.: I’m not sure about kosherbility; however, absent fraud or something similar, a party may not complain of an order to which he agreed. Patrick v. Patrick, 204 So.3d 854 (Miss. App. 2016).


All of the above is from the Bell seminar material.

A Ticking Time Bomb Post-Divorce?

August 15, 2017 § 4 Comments

We’ve all seen literally hundreds of divorce agreements that include language that goes something like this:

Husband shall have exclusive use, occupancy and possession of the former marital residence, and he shall be solely responsible to pay in due course and keep current the mortgage debt, taxes, hazard insurance, and maintenance expenses of the property, and to indemnify Wife and hold her harmless therefor. The former marital residence shall be sold not later than one year from the date of this agreement, and the proceeds shall be divided equally between the parties, after the expenses of sale are paid. If the property has not been sold to a willing and able purchaser within the time stated …

Let’s stop right there. Most marital residences nowadays are in joint tenancy with right of survivorship (JTWROS). If one tenant predeceases the other, the survivor owns the property outright. So, in the example above, if Husband predeceases Wife before the property is sold, what is supposed to be done?

Does Wife own it outright, with no claim by Husband’s estate to any part of the equity? I think Wife would have a good argument that this is the result that they intended because they both well knew how survivorship operates, and the absence of any language to the contrary connotes their intent to follow its usual operation.

Or is Wife obligated to sell and pay Husband’s estate his share of the equity? Husband’s estate would argue the clear intent of the parties to divide the equity, and that Wife would be unjustly enriched by an opposite result.

The agreement doesn’t tell us what to do. What will happen is that someone will file suit, discovery will be had, a trial will ensue, and an appeal may be taken, and after several years and a basketful of money, the matter will be decided by others rather than the original parties.

It seems to me that this could be avoided one of two ways:

One, language could be added to address specifically the eventuality of survivorship.

Two, and in my opinion better, the parties could agree to re-convey the property to themselves as cotenants.

Whatever solution you choose, this is another among many examples of how a little thought and effort can save your clients from an unanticipated and unwanted eventuality.

Note that this applies only to JTWROS. If the parties own the property as tenants by the entirety (which is becoming more prevalent among professionals, due to the shelter it provides against judgment creditors), divorce converts it to tenancy in common.

Post-Publication Note:

As you can see from the comments, my statement above that tenancy by the entirety is converted by divorce to tenancy in common is incorrect. The MSSC in 1976 held that divorce converts entirety to joint tenancy with right of survivorship. Shepherd v. Shepherd, 336 So.2d 497, 499 (Miss. 1976). Mississippi is one of the only states that so holds; imagine that.

Thanks to the commenters and Attorney Leonard Cobb.

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