Res Judicata and the Foreign Divorce
September 11, 2019 § 1 Comment
After Lisa Crew and Ellis Tillotson were divorced from each other in North Carolina, Lisa filed a complaint for equitable distribution in Mississippi, where the parties’ property was located. Following a trial the chancellor divided the marital estate.
Lisa appealed, complaining that the distribution was inequitable and erroneous. Ellis cross-appealed that the North Carolina judgment rendered the equitable distribution claims res judicata, and the chancellor erred in accepting jurisdiction.
In Crew v. Tillotson, decided August 20, 2019, the COA affirmed. Judge Tindell wrote the 6-3 decision:
¶15. With regard to the application of res judicata in divorce cases, this Court previously explained:
The doctrine of res judicata reflects the refusal of the law to tolerate a multiplicity of litigation. It is a doctrine of public policy designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions. Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.
Article IV, § 1 of the United States Constitution requires that full faith and credit be given to the judicial proceedings of sister states. However, those proceedings are only entitled to full faith and credit where the rendering court properly has subject matter and personal jurisdiction. The United States Supreme Court has applied the Full Faith and Credit Clause in the context of divorce actions.
Lofton v. Lofton, 924 So. 2d 596, 599 (¶¶14-15) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). Our caselaw further recognizes “that a divorce action involving multiple states is ‘divisible.’ That is, a divorce action involving one resident party and one foreign party may or may not be able to adjudicate personal rights, though it can sever a marriage as long as at least one party is a resident of that state.” Id. at 601 (¶27). In addition, “Mississippi law is clear that where the case in the foreign court is not decided on its merits, while suit might be barred from any other court in the state where the judgment was rendered[,] it is not res judicata in Mississippi.” Weiss v. Weiss, 579 So. 2d 539, 541 (Miss. 1991) (internal quotation mark omitted).
¶16. Here, Ellis contends the chancellor erroneously found that North Carolina did not possess personal jurisdiction over him. We agree with Ellis that the record reflects he voluntarily submitted to North Carolina’s personal jurisdiction when he entered a general appearance in the divorce proceeding. Our analysis therefore focuses on Ellis’s arguments that North Carolina statutory law required Lisa to raise equitable distribution in the divorce proceeding there and that her failure to do so barred her from asserting the issue in a subsequent action in Mississippi. Ellis relies on North Carolina General Statute Annotated section 50-11(e) (2013), which provides:
An absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under [North Carolina General Statute Annotated section] 50-20 unless the right is asserted prior to judgment of absolute divorce; except, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment in such a case if service of process upon the defendant was by publication pursuant to . . . [North Carolina General Statute Annotated section] 1A-1, Rule 4 and the defendant failed to appear in the action for divorce.
¶17. The North Carolina divorce judgment adjudicated three matters. The divorce decree granted the parties an absolute divorce under North Carolina law, allowed Lisa to resume the use of her maiden name, and allowed Lisa’s attorney to withdraw from the case. No dispute exists that Lisa’s North Carolina divorce complaint never raised the issue of equitable distribution and that the matter was therefore neither litigated in nor adjudicated by the North Carolina divorce proceeding. Lisa argues, however, that the North Carolina court lacked in rem jurisdiction to dispose of the parties’ property located outside the state. For this reason, Lisa asserts that she did not attempt to raise the issue in the divorce proceeding and that her failure to do so poses no bar to her current Mississippi action. To support her argument, Lisa cites North Carolina General Statute Annotated section 50-11(f), which states:
An absolute divorce by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property shall not destroy the right of a spouse to equitable distribution under [section] 50-20 if an action or motion in the cause is filed within six months after the judgment of divorce is entered.
(Emphasis added).
¶18. As the United States Supreme Court has previously recognized:
[W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. . . . The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.
Shaffer v. Heitner, 433 U.S. 186, 207-08 (1977) (footnotes omitted).
¶19. As we have already noted, Mississippi recognizes divisible divorce actions. Lofton, 924 So. 2d at 601 (¶27). Here, during the North Carolina divorce proceeding, neither party ever raised the issue of equitable distribution of their marital property located in Mississippi. Further, as reflected by its decree, the North Carolina court never addressed the issue. Normally, under North Carolina statutory law, a party’s failure to raise equitable distribution waives the issue in a future proceeding. N.C. Gen. Stat. Ann. § 50-11(e). But as the North Carolina Supreme Court has recognized, exceptions do exist. “Chapter 50 clearly contemplates the survival of those rights[to equitable distribution and alimony] under certain circumstances[,]” and section 50-11(f) provides an exception that “applies to cases wherein the trial court lacks personal jurisdiction over the defendant or jurisdiction to dispose of the property.” Stegall v. Stegall, 444 S.E.2d 177, 179, 180 (N.C. 1994).
¶20. We believe that such circumstances exist in the instant case. Because the North Carolina court never exercised jurisdiction to dispose of the parties’ marital property, the grant of divorce did not destroy Lisa’s right to equitable distribution under section 50-11(f) because she filed such an action within six months of the entry of divorce. We therefore find no error in the chancellor’s determination that res judicata failed to bar Lisa’s action in Mississippi. Accordingly, we find that Ellis’s argument as to this assignment of error lacks merit.
Judge Jack Wilson, joined by Barnes and Corey Wilson, wrote a well-reasoned dissent.
GAP Act: Section 125
September 10, 2019 § 1 Comment
A good starting point in looking at the GAP Act is with the most frequently asked questions that I have heard about the new law. Those questions are: How does the GAP Act affect guardianships and conservatorships that were opened before January 1, 2020?; and Can I opt out of GAP Act coverage?
Those questions are answered in Section 125 of the GAP Act, which is entitled “Transition Provisions.”
Here is Section 125 verbatim:
Section 125. Transition provisions. Except as otherwise provided in this chapter:
(a) This chapter applies to all guardianship and conservatorship proceedings commenced on or after January 1, 2020;
(b) This chapter applies to all guardianship and conservatorship proceedings commenced before January 1, 2020, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies; and
(c) An act done before January 1, 2020, is not affected by this act.
Comments:
- “Proceedings commenced” means that if you file an action to create a guardianship or conservatorship on or after January 1, 2020, your action is governed by the GAP Act. That’s because MRCP 3(a) provides that “A civil action is commenced by filing a complaint with the court.” There is no exception or “opting out” for an action commenced on or after January 1, 2020.
- But, if you file to create a guardianship or conservatorship under current law before January 1, 2020, and the case is not presented until after January 1, 2020, there is a way that you could choose which law will apply. If you do not take other steps, your case will be under the GAP Act, and you will likely have to re-issue process and amend pleadings to comply with GAP. Or you can get the judge to enter an order exempting your case, as spelled out below.
- If you have an existing guardianship or conservatorship, or you are in the situation in the previous paragraph, and you want to continue under the superseded law, I would suggest that you file a motion claiming that the application of Section 125 “would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties,” and obtain a court order that the case will proceed under the superseded statutes until further order of the court. In the alternative you can ask the judge to rule that application of a particular provision, such as the enhanced notice requirements, or some other particular provision will make it harder to administer and cause more expense. The ruling on that motion will be at the chancellor’s discretion, which varies from judge to judge. Don’t assume it would be automatic.
- DON’T Discard your current Title 93, volume 20 of the Code! You may need those provisions after the GAP Act comes online. If you’re operating from an online code, you might want to print out a copy of the current Title 93, Chapter 13 just to be sure you have something to go back to.
The Fifth Amendment and the Adverse Inference
September 9, 2019 § 3 Comments
Can a chancellor grant a divorce solely on the adverse inference created when a witness invokes the Fifth Amendment to the United States Constitution?
That was one of the questions raised in Martha Bradshaw’s appeal from a chancellor’s adjudication that she was guilty of adultery and granting a divorce to her husband, Loyd.
To refresh your recollection as to that adverse inference, here is a quote from ¶22 of the COA’s August 13, 2019, decision in Bradshaw v. Bradshaw, penned by Judge Greenlee:
Concerning a witness’s “taking the Fifth” in civil cases, the trier of fact may draw an adverse inference from a defendant’s refusal to testify. Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004).
Let’s say the witness was asked, “have you committed adultery during the marriage?” and the witness pleads the Fifth, at that point the court may infer that the witness’s answer would have been adverse to his or her interest.
So, when a witness claims the Fifth Amendment’s right against self-incrimination in a divorce case, is that inference enough to satisfy the burden of proof? Judge Greenlee says:
However, we have failed to find a case that allows a divorce to be granted based solely on that inference.
In a specially concurring opinion, Judge McCarty raises the question whether in Mississippi it is even appropriate to invoke the Fifth on the basis that answering the question could subject one to prosecution for adulterous conduct. At footnote 7 he observes:
It is unlawful cohabitation conjoined with more than a single act of adultery that is a crime—a misdemeanor. Miss. Code Ann. § 97-29-1 (Rev. 2014); see Miss. Dep’t of Wildlife, Fisheries & Parks v. Bradshaw, 196 So. 3d 1075, 1085 (¶26) (Miss. Ct. App. 2016) (holding that there is no general crime of adultery, but that the Code prohibits cohabitation when there is a “habitual . . . laying together”).
Then, at footnote 8, he points out:
There have been prosecutions for adultery, but we do not see reported cases on it lately. See Ratcliff v. State, 234 Miss. 724, 728, 107 So. 2d 728, 729 (1958) (examining the law and the corollary prohibition on marriage between blacks and whites, which unlike the cohabitation crime, was a felony punishable with 10 years); Housley v. State, 198 Miss. 837, 839, 23 So. 2d 749, 749 (1945) (affirming dual convictions for unlawful cohabitation). Although it is easy to see the objection as gamesmanship, we have reminded the Bar not too long ago “that cohabitation between persons not married to each other is against the law in Mississippi,” and while “this law is frequently broken has been recognized by the supreme court,” it remains on the books as a crime. Sullivan v. Stringer, 736 So. 2d 514, 516-17 (Miss. Ct. App. 1999). We ruled there that “[c]ommission of crimes by a custodial parent, even if they are only about sex, is properly the concern of a chancellor,” although it should be added that the weight accorded to it is left to the trial court. Id.
He refers to the objection based on possible prosecution for adultery as “incorrect” in footnote 9:
The same incorrect objection was lodged in McDonald v. McDonald, 69 So. 3d 61, 66 (Miss. Ct. App. 2011). We noted in passing that we would “decline to address the question of whether [the husband] could have successfully been prosecuted for adultery . . . . ” Id. at 66 n.2.
“Quote Unquote”
September 6, 2019 § Leave a comment
“Music is essentially useless, as life is.” — George Santayana
“The day you open your mind to music, you’re halfway to opening your mind to life.” — Pete Townshend
“Without music, life would be a mistake.” — Friedrich Nietzsche
The GAP Act: Introduction
September 4, 2019 § 1 Comment
Effective January 1, 2020, every statute now existing in Title 93, Chapter 13 will be repealed and replaced by SB 2828, known as the GAP Act. GAP is an acronym for “guard and protect” children and vulnerable adults.
The act is a product of a commission initiated in 2017 and headed by Justice Dawn Beam of the MSSC. The commission produced the content that was introduced in the legislature as SB 2828 in 2018, and was signed into law by Governor Bryant in 2019. The effective date was set far enough in the future to give lawyers and judges time to acquaint themselves with the new law.
All guardianships and conservatorships opened after January 1, 2010, must comply with the act. There are four Articles of the act: Article 1 consists of general provisions; Article 2 deals with guardianship of the minor; Article 3 addresses guardianship of the adult; and Article 4 is for conservatorships.
As for pre-Act guardianships and conservatorships, Section 125 provides that GAP applies to them also unless the chancellor finds that application of a particular provision would “substantially interfere” with the guardianship or prejudice the rights of the parties, in which case that provision does not apply and the superseded law applies. So don’t toss out your Title 93 when the new code arrives.
One of the biggest changes is that the term ”Guardian” will mean the person responsible for the personal affairs of the ward – what we now call a “guardian of the person. A guardian may have a minor or adult ward. “Conservator” will mean the person responsible for the financial affairs of the ward. A conservator may have a minor or adult ward.
Another big change is heightened notice requirements. More people will have to be given notice of the proceeding, and some of those may be allowed to participate. Notices will have to include certain language, as will pleadings.
Hearings are mandated. The court is required to make specific findings.
The MSSC will publish forms for pleadings, process, and even court orders. The forms you have now will not work under the GAP Act.
I will publish a series of posts giving you some insight into what is coming. In the meanwhile, I urge you to read the act and become conversant with it. This blog is no substitute for your own mastery of the subject, which will require that you read and digest its content.
It’s not in the Record Until You Get it into Evidence
September 3, 2019 § 4 Comments
It is elementary that until you get something into evidence it is not part of the record, and it cannot be considered by the court in making a decision.
Judge Westbrooks of the COA specially concurred in the case of Almasri v. Miss. Dept of Revenue, decided August 6, 2019, to remind attorneys and judges of that very point:
¶14. I agree with the majority’s opinion and write separately only to emphasize the importance of following procedures necessary to ensure that pertinent statements and representations are eligible for consideration as evidence and thereby designated as a part of the record.
¶15. The majority opinion notes that during the hearing on the MDOR’s motion to dismiss, counsel for Almasri indicated his client was unable to pay the required bond or assessment under protest. Though officers of the court, lone “statements by attorneys are not evidence.” Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1092 (¶27) (Miss. Ct. App. 2012) (Court held circuit court erred by allowing expert witness’s baseless testimony; expert’s assertion was partially supported by lone attorney statement indicating plaintiff’s sobriety). As noted, there was no affidavit or sworn testimony supporting the attorney’s representation to the court; the lack thereof precluded Almasri’s alleged inability to pay from evidence in the chancery court, and consequently, the record this court considered on appeal.
¶16. To establish evidentiary value, it is imperative that attorneys take the opportunity to (1) reduce the statement(s) to written form by sworn affidavit or (2) provide sworn testimony to affirm any potentially relevant assertions. In instances where assertions, such as the one Almasri’s attorney made, may impact the outcome of a proceeding or appeal, the statements need to be a part of admitted (or proffered) evidence in the record. Lone statements or arguments of counsel simply are not enough.
To that very apt statement I would add that pleadings and motions are not evidence until they are admitted into evidence by the court. The same goes for exhibits to pleadings and motions. Even affidavits are not in the record until they are admitted into evidence.
I have had attorneys, while questioning a witness, pause and look over at me: “She is referring to Exhibit 2 to the complaint, your honor.” All I can do is inwardly wince.
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