Commingling and Family Use

April 29, 2020 § 1 Comment

Allison Gaskin inherited two parcels of property during her marriage to her husband, Tony.

When it came time for a divorce, Tony took the position that the two parcels were marital, subject to division. Allison disagreed. After trial, the chancellor found the property to be part of Allison’s separate estate. Tony appealed.

In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson wrote the unanimous opinion:

¶18. During the course of the marriage, Allison inherited interests in two parcels of land: the first was a fourteen-acre tract of land referred to by the parties as the “White House property,” and the second was a sixty-five-acre tract located at 3506 Highway 18 in Rankin County. The chancellor determined that the White House property had been commingled and converted to marital property because Tony had purchased Allison’s brother’s one-half interest in the property and had “made significant contributions in maintaining the property.” The chancellor further found that the property “ha[d] been used by Tony and the boys for hunting and fishing.” The White House property was valued at $160,000, and the chancellor awarded the property to Allison as part of the division of marital assets.

¶19. Regarding the sixty-five-acre tract of land located at 3506 Highway 18, Tony testified that he occasionally bush-hogged the property and stored some Gaskin Plumbing equipment on the property. The parties stipulated that the total value of this parcel was $607,000. In contrast to the White House property, the chancellor found that the sixty-five-acre parcel Allison inherited had not been “commingled to the extent necessary to classify it as marital
property for the purpose of division between the parties.”

¶20. On appeal, Tony asserts that the chancellor erred in finding that the sixty-five-acre tract of land constituted nonmarital property. He contends that the evidence was clear that he spent substantially more time and effort maintaining the sixty-five-acre property than he did maintaining the White House property. Tony also asserts that he would hunt, fish, and play sports on the sixty-five-acre tract with the boys. He contends that these activities effectively commingled the property and converted it to marital property, not Allison’s separate nonmarital property.

¶21. “When dividing marital assets, the chancery court must first classify the property as marital property or nonmarital property.” McDonald v. McDonald, 115 So. 3d 881, 885 (¶12) (Miss. Ct. App. 2013) (citing Stewart v. Stewart, 864 So. 2d 934, 937 (¶12) (Miss. 2003)). “Marital property is defined as ‘any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.’” Id. By contrast, “[i]nter vivos gifts and inheritances are considered nonmarital property unless they have been commingled.” Id. at 886 (¶12) (citing Everett v. Everett, 919 So. 2d 242, 247 (¶19) (Miss. Ct. App. 2005)). “Assets which are classified as nonmarital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Stewart, 864 So. 2d at 937 (¶12) (quoting Boutwell v. Boutwell, 829 So. 2d 1216, 1221 (¶20) (Miss. 2002)).

¶22. Importantly, “we will not substitute our own judgment for that of the chancellor.” McDonald, 115 So. 3d at 886 (¶16). Here, we cannot say that the chancellor erred in finding that the sixty-five-acre property inherited by Allison and her brother remained nonmarital property despite Tony’s assertions that he spent substantial time maintaining the parcel and that he spent time on the property with the couple’s boys. The chancellor found that Tony’s
occasional bush-hogging, equipment storage, and recreational activities with the family were not sufficient to commingle the property with the parties’ marital assets, such that the land should be classified as marital property for the purpose of equitable division. We find that the chancellor did not abuse his discretion in treating the sixty-five acres as nonmarital property, and this issue is without merit. [Fn omitted]

I think the law of so-called “family use” which is the same as the commingling argument here, could use some attention from the MSSC. We have this case at one end, where hunting, fishing, bush hogging, and storing business equipment is inadequate to bring it into the marital estate. And on the other end we have a case such as Rhodes v. Rhodes, in which use of a separate beach condo once a year by the family and the wife’s selection of drapes for it converted it into a marital asset. I whined about Rhodes in this old post.


Air Alimony

April 28, 2020 § Leave a comment

Most of the cases that come stumbling through my court involve people living literally on the brink of financial catastrophe. Minimal income and maximal debt.

That was the situation of Morgan and Melanie Ewing when they appeared before the chancellor in 2015. The chancellor proceeded through equitable distribution and, notwithstanding their financial straits, ordered Morgan to pay Melanie child support and alimony. Morgan appealed, and the COA reversed and remanded to require Ferguson findings, which necessitated a review of the other financial awards as well.

On remand the chancellor at first rendered an order making Ferguson findings and reinstating the original awards. Morgan filed what must have been a R59 motion (the COA refers to it as “a motion for reconsideration, a motion to set aside the judgment …”), which the chancellor granted, setting the matter for a full hearing. Following the hearing, the chancellor entered his judgment essentially identical to what he had done before. Unhappy with the outcome, Morgan again appealed.

In Ewing v. Ewing, decided April 7, 2020, the COA affirmed. We looked at the decision on the issue of attorney’s fees in a previous post. Here is how Judge Barnes addressed the issue of alimony:

¶9. In the prior appeal, this Court “affirmed as to the finding of a need for periodic alimony” but remanded for reconsideration of the amount in light of Morgan’s standard of living. Ewing, 203 So. 3d at 715-16 (¶¶29-30). On remand, the chancery court upheld the award of periodic alimony, concluding that “the award of $500.00 per month in periodic alimony is proper after analyzing Morgan’s other financial obligations and his ability to maintain a decent standard of living.” The chancery court specifically determined that even after Morgan paid child support, alimony, and the monthly installment for attorney’s fees, he “would still net $1,629.52 each month based upon his current income, which is sufficient considering Melanie has [four] children living with her and he only has himself.” [Fn 5] Morgan argues that the chancery court’s award of permanent periodic alimony to Melanie “was
unreasonable in light of [his] inability to pay and the income of Melanie.”

[Fn 5] Although Morgan notes the chancery court’s error in the order regarding the number of children (i.e., four versus five children), we agree with Melanie that because child support was not calculated based on five minor children, this is simply a scrivener’s error that has no substantive effect on either party. While not affecting our analysis of this issue, we have noted a minor discrepancy in the court’s calculation of Morgan’s net monthly income, which we will address further when we address the award of attorney’s fees.

¶10. As with other domestic-relation matters, a chancery court’s award of alimony is discretionary and will not be reversed on appeal absent a determination that the court’s findings of fact were manifestly in error and an abuse of discretion. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). “A chancellor’s decision to award permanent alimony must consider both need and ability to pay.” Rogillio v. Rogillio, 57 So. 3d 1246, 1252 (¶24)
(Miss. 2011). “In making that decision, the chancellor considers, in relevant part, the reasonable net income and expenses of both spouses.” Id. (citing Box v. Box, 622 So. 2d 284, 288 (Miss. 1993)). “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019).

¶11. Arguing that the chancery court failed to “balance [Melanie’s] needs with [his] inability to pay” in awarding periodic alimony, Morgan contends that Melanie “received over $44,000.00 in assets, [had] no debts, had all of her expenses paid for several years under the temporary order, and currently is a homeowner with over $44,000.00 in separate equity in her home over and above the property division.” In contrast, Morgan states that he has a negative estate with approximately $50,000 in debt. He also claims Melanie now earns more than he does.

¶12. Morgan argues that the chancery court was required to examine the financial positions of the parties both at the time of trial and the time of remand, citing Yelverton v. Yelverton, 26 So. 3d 1053 (Miss. 2010). Specifically, Morgan claims that while the chancery court addressed his financial position at the time of remand, the court failed to consider Melanie’s current financial position. His main point of contention is that Melanie’s salary had
increased since 2015, and she now earns more in net monthly income than he does. In Yelverton, the chancery court issued a seventeen-page judgment without a hearing and upheld awards of alimony and child support. Id. at 1056 (¶6). The chancellor “based his decision on testimony and exhibits received at the hearings conducted prior to the original 2004 judgment.” Id. The appellant claimed the court should have held an evidentiary hearing to consider changes occurring since its original 2004 judgment. Id. at (¶10). The Mississippi Supreme Court agreed and reversed and remanded with instructions to the court to “conduct an evidentiary hearing” in order to determine the following: (1) the value of marital assets no later than the date of divorce and based on evidence presented at the remand hearing; (2) “the amount of periodic alimony and child support due up until the time of the
remand hearing” based on circumstances up until the remand hearing; and (3) “the amount of periodic alimony and child support going forward from the time of the remand hearing, which shall be determined based on the circumstances existing at the time of the remand hearing.” Id. at 1057 (¶13).

¶13. Unlike Yelverton, the chancery court in this case determined that the periodic alimony award of $500 was appropriate after conducting an evidentiary hearing and considering the parties’ incomes and expenses at trial and up to remand. The chancery court noted in its order that Melanie’s net monthly income, as of February 18, 2015, was $851.70, while her net expenses were $2,830.00, and that she “lost approximately $2,000 per month simply
paying her bills.” Morgan’s monthly net income, as of February 2015, was $2,579.35, while his net expenses were $2,329.39 before the child-support payment.

¶14. With regard to the parties’ finances up to remand, the chancery court’s order admittedly failed to mention Melanie’s more recent Rule 8.05 financial declaration dated June 2018, which showed her net monthly income had increased to $2,991.32.6 However, the chancery court found that both parties “essentially live paycheck to paycheck with their current living expenses.” (Emphasis added). This finding is supported by the evidence. Melanie’s combined total expenses from her 2018 Rule 8.05 financial declaration were $3,840.53, still leaving her with a significant deficit. Furthermore, although Melanie’s salary and wages significantly increased to $3,114 in 2018, she still earns less than Morgan. According to his financial declarations, Morgan’s salary and wages increased from $3,620 in 2015 to $4,752.80 in 2018.

¶15. Accordingly, we do not find that the court’s award of periodic alimony was manifestly in error or an abuse of discretion, and we affirm on this issue.

This case illustrates what a chancellor can do when both parties live “paycheck to paycheck,” and how the COA is likely to view it, even when the alimony will have to be conjured up from thin air, or seem to. It seems to me that the appellate courts could go either way in a close case such as this (as the chancellor could, as well), the tipping point being one party’s greater — even slightly greater — need. When you try one of these quite typical scenarios, think about that tipping point. Give your chancellor the evidence she needs to tip the case your client’s way.


Quantifying Child Support

April 27, 2020 § 2 Comments

It is well-established in our law that a court-imposed life insurance obligation must be in an amount reasonably relative to the obligation secured by it. For instance, a $1,000,000 policy to secure a $500 monthly alimony obligation would be unreasonable.

In his divorce from Allison Gaskin, Tony Gaskin was ordered to keep in effect an existing life policy “with death benefits of at least $900,000 … to guarantee the support of the minor boys.” Was that reasonable? Tony didn’t think so, because he calculated child support to total only around $357,000. So he appealed.

In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson’s opinion for the unanimous court:

¶15. In the final judgment, the chancellor ordered Tony to maintain his existing Farm Bureau Life Insurance policy “with death benefits of at least $900,000 during the boys’ minority.” The chancellor required continuation of the policy “to guarantee the support of the minor boys,” specifying that the “boys shall be listed as the primary beneficiaries until both boys’ emancipation or until further order of [the court].” Tony contends that the chancellor’s ruling was in error. Tony reasons that because the life insurance was to “guarantee the support of the minor boys,” the policy’s death benefits should mirror the total amount of Tony’s remaining child support obligations. In monetary terms, Tony calculates that he should only have to maintain a policy with death benefits of $357,115.40, an amount equal to the child support Tony contends he will pay until the boys’ emancipations. [Fn 8] Tony thus contends that the chancellor abused his discretion by requiring that Tony maintain an insurance policy with death benefits in excess of the amount needed to support the boys in the event of his untimely death.

[Fn 8] At the time of the parties’ divorce, the minor boys were thirteen and sixteen years old. To calculate policy death benefits at $357,115.40, Tony posits that support for the older boy would continue for forty months and support for the younger boy would continue for ninety months, until their respective emancipations. Tony multiplies the current child support for the two boys by forty, which totals $96,686.40. He then adds the amount of child support that he would have to pay for his younger son, presumably half of the current amount, for the remaining fifty months until he is emancipated, which equals $60,429. He then adds $100,000 for each child to cover college expenses. These amounts yield Tony’s asserted $357,115.40 in outstanding child-support obligations.

¶16. In support of his position, Tony relies on Daniels v. Bains, 967 So. 2d 77 (Miss. Ct. App. 2007). In Daniels, the appellant contended that the county court erred in ordering him to purchase a $500,000 life insurance policy for the benefit of his daughter. Id. at 83 (¶20). Daniels argued that the $500,000 policy was excessive because he would only be paying $273,600 in support until his daughter’s emancipation. Id. But we found “Daniels’s attempt to quantify a father’s support [ ] unpersuasive” and determined that the chancellor did not abuse his discretion in ordering Daniels to maintain a life insurance policy for his minor daughter. Id. at 83-84 (¶¶21-22).

¶17. As in Daniels, we find Tony’s attempt to quantify his child support obligations unpersuasive. “Parents may be ordered to pay additional amounts over and above child support for additional expenses such as ‘health insurance, out-of-pocket medical and other health-related expenses, life insurance, and expenses of a college education.’” Id. at 83 (¶21) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 10.07, at 309 (1st ed. 2005)). “[A] father’s support is not fully appreciable in a simple financial cost-benefit analysis”; to the contrary, “a father’s overall support transcends mere financial support.” Id. at 84 (¶22). We thus find that the chancellor did not abuse his discretion in ordering Tony to maintain a $900,000 life insurance policy prior to his boys’ emancipations.

In other words, a father’s support is more than a pay day, or is intended in our law to be. It is love, companionship, moral and character building, modelling fatherhood and family relationships, teaching skills, and even more. How do we place a value on that?

Alimony is a whole ‘nother ball of wax, as the court points out in footnote 9, page 9.

The Founders, Religion, and Conscience

April 24, 2020 § 3 Comments

Was it the intention of the founders to establish a Christian nation?

Witness their thoughts:

  • “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”  — James Madison
  • “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. State churches that use government’s power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the ‘wall of separation between church and state,’ therefore, is absolutely essential in a free society.”  —  Thomas Jefferson
  • “The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate … We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. The civil government functions with complete success by the total separation of the Church from the State.”  —  James Madison
  • “We should begin by setting the conscience free. When all men of all religions shall enjoy equal liberty, property, and equal chance for honors and power we may expect that improvement will be made in the human character and the state of society.”  —  John Adams
  • “I beg you be persuaded that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution.”  —  George Washington
  •  “I contemplate with solemn reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.”  —  Thomas Jefferson
  • “It is contrary to the principles of reason and justice that any should be compelled to contribute to the maintenance of a church with which their consciences will not permit them to join …”  —  George Mason
  • “Without freedom of thought, there can be no such thing as wisdom; and no such thing as a public liberty without the freedom of speech; which is the right of every man as by it he doe not hurt or control the right of another …”  —  Benjamin Franklin
  • “Conscience is the most sacred of all property.”  —  James Madison
  • “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience …”  —  George Mason

Law in the Time of Plague

April 22, 2020 § 3 Comments

Some ruminations on our current state of affairs:

  • It was March 13, 2020, when the MSSC issued its first emergency administrative order to address covid-19 and the courts. From the vantage point of only a month and a week later, that seems like a century ago. What we hoped would be a week or two ordeal has persisted … and looks like it will continue to persist into the foreseeable future.
  • Who could have imagined the scope of isolation? If I ever gave pandemic any thought at all it was on my scale of worrisome things right around quicksand, poisonous cobras, and werewolves. Now I think about it — a lot. Living with pandemic is like living in a city stalked by a random shooter. You never know whether this particular trip to the grocery store is the one that will do you, or whether standing in line at the post office is where it will get you, or whether this visit to the court house …
  • The Governor is mulling over when to roll back the restrictions he imposed to limit spread of contagion. As for the courts, though, keep in mind that we are not subject to the Governor’s authority because we are a separate, equal branch of government. The MSSC has administrative authority over the courts. Of course the high court respects the Governor’s guidelines and tries to incorporate their boundaries into the court guidelines as much as possible, but in the final analysis the court goes its own way. My point being that, once the Governor drops his restrictions, do not expect the courts immediately to do the same. It might be that the courts may continue restrictions in place. Judges will continue to follow the MSSC’s Emergency Administrative Orders as long as they remain in effect, and as they are changed.
  • One salutary, I suppose, development has been to influence mossbacks such as I closer to use of Zoom, Face Time, and who knows what else to do the court’s business. That may end up being a long-term and even permanent change that the pestilence brought to our daily practice.


Prescriptive Easement Fail

April 21, 2020 § Leave a comment

Steve Thornton filed suit as trustee of a family trust to establish a prescriptive easement to property owned by the trust. The original chancellor stepped aside after a bench trial, and the parties agreed that the successor chancellor could decide the case on the record made before the first chancellor. Following a review of the record, the successor chancellor ruled that Thornton had failed to meet his burden of proof and ruled for the defendants. Thornton appealed.

The COA affirmed in Thornton v. Purvis, et al., handed down April 14, 2020. Here’s how Judge Jack Wilson’s opinion for the unanimous court addressed it:

¶21. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). To establish a prescriptive easement, the claimant must show use of the easement that “was: (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.” Id. at 1152-53 (quotation marks omitted).

¶22. A chancellor’s finding that the evidence was insufficient to establish a prescriptive easement is a finding of fact that we review under “the substantial evidence/manifest error test.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). Under that test, we will not reverse unless the chancellor’s findings of fact are manifestly wrong or clearly erroneous or the chancellor applied the wrong legal standard. Darnell v. Darnell, 234 So. 3d 421, 423 (¶4) (Miss. 2017). We will “accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 155 (¶24) (Miss. 2011).

¶23. Each of the elements of a prescriptive easement “must be proven by clear and convincing evidence.” Thornhill, 594 So. 2d at 1153. “‘Clear and convincing evidence’ is such a high evidentiary standard that it surpasses even the standard of‘overwhelming weight’ of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Put otherwise, the minimum evidentiary offering from the unburdened appellee necessary for affirmance is less than it would be if the preponderance of the evidence rule applied.” Id.; accord Matthews v. Whitney Bank, 282 So. 3d 786, 794-95 (¶29) (Miss. Ct. App. 2019).

¶24. Thornton argues that we should abandon our usual, deferential standard of review in this case. He contends that we should review Judge Martin’s findings de novo because Judge Martin did not preside over the trial or personally observe the witnesses. However, the cases that Thornton cites are inapposite. For example, in Amiker v. Drugs For Less Inc., 796 So. 2d 942 (Miss. 2000), the Supreme Court held that “a successor judge does not possess the power to vacate an initial judge’s order granting a new trial where . . . the successor judge sits in an inferior position to the first judge.” Id. at 948 (¶22) (emphasis added). Judge Martin did not vacate any prior findings by Judge Walker. Rather, Judge Martin simply made findings of fact based on the evidence presented at trial and his view of the property—just as the parties agreed that he should.

¶25. In addition, in Gulf Coast Research Laboratory v. Amaraneni, 877 So. 2d 1250 (Miss. 2004), the Supreme Court held that the record was “woefully inadequate” to support the findings of a successor judge because, among other issues, the court reporter had failed to transcribe most of the original trial. Id. at 1252-54 (¶¶10-15). Therefore, the Supreme Court vacated and remanded the case for a new trial. Id. at 1254 (¶15). The problem in Gulf Coast
Research Laboratory was the adequacy of the record, not the standard of review. In this case, Judge Martin was provided the full and complete trial transcript, and the parties agreed that the record was adequate for Judge Martin to render a final decision. Thornton simply disagrees with the decision that Judge Martin rendered.

¶26. Although Judge Martin did not personally observe the witnesses, “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. There is no reason to believe that appellate second-guessing of such findings would do anything to improve their accuracy. Id. at 574-75. “In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade [ten] more judges at the appellate level is requiring too much.” Id. at 575. The trial “should be the main event rather than a tryout on the road.” Id. (quotation marks and ellipsis omitted).

¶27. Thornton agreed that the record created at trial was adequate for Judge Martin to make findings and issue a final decision. That being the case, we apply our ordinary substantial evidence/manifest error test to those findings.

II. The chancellor did not manifestly err by denying Thornton’s claim.

¶28. The six elements of a prescriptive easement are set out above. Supra ¶21. To establish an easement by prescription, each of those six elements must be proved by clear and-convincing evidence. Therefore, the claim fails if the claimant fails to prove even one of the six elements. See, e.g., Miss. Sand Solutions LLC v. Otis, 248 So. 3d 813, 818-20 (¶¶19-29) (Miss. 2018); Paw Paw Island Land Co. v. Issaquena & Warren Counties Land Co., 51 So. 3d 916, 923-26 (¶¶27-41) (Miss. 2010); Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005); Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999); Watts v.
Jackson, 281 So. 3d 203, 206 (¶18) (Miss. Ct. App. 2019).

¶29. As noted above, the chancellor found that Thornton failed to prove four of the six elements of a prescriptive easement. As to the “open, notorious, and visible” element, the chancellor found in part:

The problem with proving this element is the intermittent use proven by the Plaintiff. . . . Most, if not all of the use which was specifically referenced by the Plaintiff or his family members related to hauling hay or harvesting corn. This use is limited to a few days each year. No evidence was shown of daily, weekly or even monthly use or ongoing maintenance by the Plaintiff that might have put property owners on notice that someone was using the roadway. Considering the rural nature of the surrounding area and the lack of residences along the roadway, the Court cannot say that use a few days a year constitutes clear and convincing evidence of open, notorious and visible use.

¶30. A party claiming an easement by prescription is not required to prove “that the way has been in constant use, day and night.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Rawls v. Blakeney, 831 So. 2d 1205, 1210 (¶16) (Miss. Ct. App. 2002)). However, the claimant is required to establish that the servient landowner knew of and acquiesced in the adverse use or that the adverse use was “so open, notorious, visible,
and uninterrupted that knowledge and acquiescence will be presumed.” Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992) (quoting McIntyre v. Harvey, 158 Miss. 16, 21, 128 So. 572, 573 (1930), overruled on other grounds by Rutland v. Stewart, 630 So. 2d 996, 999 (Miss. 1994)). We cannot say that the chancellor in the present case manifestly erred in finding that Thornton failed to establish this element of his claim by clear and convincing evidence.

¶31. To begin with, there is substantial evidence to support the chancellor’s finding that the Thorntons’ alleged use of the road was limited to a few days per year, which would not have provided sufficient notice to other landowners in this rural, sparsely populated area. Moreover, Timothy Patterson and Royce Welch described the path as just a “little pig trail” or “little trail” until the mid-1970s, when an oil company improved and widened it. Patterson
denied that the Thorntons used the path to plant or harvest crops or hay while he lived there, and Welch similarly denied that the Thorntons had ever grown hay, corn, or other row crops in the area. Accepting their testimony as true, nothing about the use or appearance of the road should have alerted neighboring landowners to any significant adverse use of their properties. The testimony of Patterson and Welch conflicted with testimony of Thornton and his other witnesses, who described driving down a gravel road via truck, tractor, and wagon even before the improvements in the 1970s. However, the mere presence of conflicting evidence does not render the chancellor’s findings manifestly erroneous. Rather, such conflicts must be decided by the trial judge, as the fact-finder. E.g., Powell v. Campbell, 912 So. 2d 978, 981 (¶9) (Miss. 2005). Therefore, we cannot say that the chancellor manifestly
erred by finding that Thornton failed to prove, by clear and convincing evidence, that his family’s use of the property was open, notorious, and visible.


¶32. All six elements of a prescriptive easement must be proved by clear and convincing evidence. If the claimant fails to meet his burden on any one element, the claim fails. We hold that the chancellor did not manifestly err by finding that Thornton failed to establish by clear and convincing evidence that his family’s use of Alvie Rankin Road was open, notorious, and visible. Therefore, we need not address the chancellor’s findings regarding
the remaining elements of Thornton’s claim. The judgment of the chancery court denying a prescriptive easement is AFFIRMED.

Lots of nice, helpful law there, and a fine exposition on the law of prescriptive easements and adverse possession.

Inability to Pay Attorney’s Fees

April 20, 2020 § 1 Comment

In the divorce action between Morgan and Melanie Ewing, on remand, one of the issues presented to the chancellor was whether Melanie was entitled to an award of attorney’s fees, and, if so, how much.

Following a trial, the chancellor ordered Morgan to pay Melanie an attorney’s fee of $11,807.57. Morgan again appealed.

In Ewing v. Ewing, decided April 7, 2020, the COA affirmed. Chief Judge Barnes wrote for the unanimous court:

¶16. Morgan claims that the chancery court also erred in awarding Melanie attorney’s fees in the amount of $11,808.57. “Attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees . . . [, and] chancellors are instructed to make specific findings regarding the recipient’s ability to pay.” Evans v. Evans, 75 So. 3d 1083, 1089 (¶22) (Miss. Ct. App. 2011). Addressing the factors in McKee v. McKee, 418 So. 2d
764, 767 (Miss. 1982), the chancery court found that Melanie had “incurred $11,808.57 in attorney’s fees by a skilled attorney as a result of litigation spanning three (3) years which required a large degree of responsibility in management and time and precluded the prior legal counsel from other employment.” The court expressly determined that Melanie had an inability to pay her attorney’s fees, noting that Melanie’s 2015 financial declaration from the trial indicated a net monthly income (before child support) of $851.70 and net monthly expenses of $2,830.00, leaving her with a monthly deficit of $1,978.30.

¶17. Morgan claims that the chancery court erred in failing to take into account his inability to pay attorney’s fees as evidenced by his Rule 8.05 financial declarations. This Court has held that “[w]here neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate.” Evans, 75 So. 3d at 1089 (¶24) (citing Sarver v. Sarver, 687 So. 2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.
2d 157, 163 (¶17) (Miss. 2000)). We find that the record indicates the chancery court did consider Morgan’s ability to pay in its order, stating:

Currently, Morgan’s net monthly income after payment of child support is $2,629.52. Morgan[’s] net income before payment of child support as of the date of divorce was $2,579.35. Morgan is directed to pay periodic alimony in the amount of $500.00 per month and $250.00 per month towards Melanie’s attorney’s fee, then he would still net $1,629.52 each month based upon his current income, which is sufficient considering Melanie has [four] children living with her and he only has himself.

Reviewing Morgan’s 2018 financial declaration, we note a minor discrepancy between the court’s calculation and ours—we find that Morgan would actually have a net monthly income of $1,879.53 (after taxes, insurance, child support, alimony, and attorney’s fees are deducted from his monthly income). Nevertheless, this amount is greater than the chancery court’s determination, and Morgan’s net monthly income has increased since 2015. Therefore, we find no merit to his argument and affirm the chancery court’s award of attorney’s fees to Melanie.

This is a good arrow to have your quiver if you have to argue for an award of attorney’s fees for a low-income client.

Dispatches from the Farthest Outposts of Civilization

April 17, 2020 § Leave a comment

The Price Tag for Dishonesty

April 15, 2020 § Leave a comment

An old saw among lawyers is that “It’s better to be hurt by the truth than by a lie.”

One could say that T.J. Anderson’s dishonesty cost him $14,000+ in his divorce case. In essence the COA said precisely that in its opinion affirming the chancellor’s order that he pay his ex, Carrie, that sum plus interest to replace his son Robert’s educational fund. Here’s how Judge Tindell’s March 31, 2020, opinion in Anderson v. Anderson addressed it:

¶29. On the issue regarding the depletion of Robert’s savings account, the chancery court found as follows:

During their marriage Carrie’s grandmother gave Carrie, T.J., and [Robert] $14,000 to put into a savings account for [Robert’s] college education. T.J.
placed this money in his name and in the name of the child. T.J. withdrew the money from this account. He claims that Carrie knew of the withdrawal. While the Court does not believe that Carrie knew that T.J. was withdrawing his son’s money, it would be of small consequence. Carrie knowing would not be justification for the withdrawal. T.J. withdrew and used his son’s money. T.J. will be responsible for replacing any funds he withdrew from his son’s account in the approximate amount of $14,000 together with any interest those withdrawals would have generated.

¶30. T.J. asserts that the chancery court committed manifest error when it ordered that T.J. be fully responsible for replacing the $14,000 removed from Robert’s savings account, in addition to any lost interest attributable to the missing funds. Citing McLaurin v. McLaurin, 853 So. 2d 1279, 1286 (¶24) (Miss. Ct. App. 2003), T.J. argues that the money taken from that account was used to pay marital debts, and thus Carrie “should be equally responsible for replacing the money from the account.”

¶31. We find no merit in T.J.’s assertions. As noted above, when Robert was two years old, Carrie’s grandmother gave Robert $14,000 as a college fund, and T.J. put this money into a savings account in T.J.’s and Robert’s names. The record reflects that T.J. withdrew sums of money on different occasions from this account until there was no money left in the account. At trial, T.J. testified that Carrie was “generally aware” that he had withdrawn the money. Carrie, however, testified that she did not know T.J. had taken this money until the parties separated and she found the passbook savings account showing that the money was missing. T.J. admitted at trial that he did not put the money in the couple’s joint account. He testified that he “paid bills with it,” but he could not specifically account for it.

¶32. We find relevant in this analysis that the record reflects a number of incidents reflecting T.J.’s lack of candor with the chancery court. “[T]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present. The chancellor alone hears the testimony and sees the demeanor of the witnesses.” Culumber v. Culumber, 261 So. 3d 1142, 1150 (¶24) (Miss. Ct. App. 2018) (citations and internal quotation marks omitted). In this case, the chancellor stated on the record that T.J. was “among the most dishonest individuals that [he had] had on the stand” in the chancellor’s nearly thirty years as a judge. Particular incidents at trial included T.J. substantially misstating his employment history and earnings and T.J. denying that he posted messages on social media berating Carrie and calling her inappropriate names. As described in the chancery court’s opinion and final judgment,

In Exhibit 43 Carrie was berated and called vile names. T.J. swore that he knew absolutely nothing about this posting. Several months later, after Carrie’s attorney had arranged for a police computer expert to testify, T.J. confessed that he had in fact sent the posting and had lied to the Court about it.

¶33. In light of these circumstances and our limited standard of review, we find that the chancery court’s order that T.J. replace the funds withdrawn from Robert’s account, plus interest that would have been generated on those withdrawals, was based on substantial, credible evidence. We therefore find that T.J.’s assignment of error on this issue is without merit.

A point or two:

  • If you really expect the chancellor believe that your client spent funds on marital debts as T.J. claimed here, you’d best come up with some credible corroborating proof such as receipts or testimony, particularly when your client has already damaged his own credibility in his testimony.
  • Vague testimony, such as T.J.’s general claim about the marital debts not only lacks credibility, it also is most unhelpful to the court. What bills? When? How much was paid? To whom?

Valuation with Less than Ideal Proof

April 14, 2020 § 5 Comments

If you’re looking for the most efficient way to drain your client of all credibility in financial proof, let him submit an 8.05 financial statement that only an idiot would accept as accurate.

When Michael and Lisa Dickinson were in trial over their divorce, Michael submitted a financial statement listing the value of their former residence as $500,000, unsupported by any other evidence. Lisa valued it at $126,170, supported by the tax collector’s bill and valuation. Neither party offered a professional appraisal. The chancellor found Lisa’s valuation more credible. Dissatisfied, Michael appealed.

In Dickinson v. Dickinson, decided March 31, 2020, the COA affirmed. Judge Tindell’s opinion:

¶25. Michael also argues that the chancellor erred in the valuation of the couple’s marital home. Michael concedes that neither he nor Lisa submitted formal appraisals of the home to the chancellor at trial. Rather, each party submitted their Rule 8.05 financial statements with their alleged valuations of the home. [Fn omitted] Michael submitted a $500,000 valuation of the home, which the chancellor found to be speculative and unsupported by any other evidence or documentation. Lisa submitted a valuation of $126,170 along with the Jackson County Tax Collector’s bill and valuation statement, issued on November 26, 2014, which also valued the home at $126,170. Based upon the limited evidence presented, the chancellor valued the home at $126,170 and awarded the home to Lisa.

¶26. Lisa argues that the chancellor appropriately valued the home based upon the limited available evidence, and she cites to Williams v. Williams, 264 So. 3d 722 (Miss. 2019), in support of her argument. In Williams, the Mississippi Supreme Court upheld a chancellor’s valuation of a couple’s marital property based upon limited evidence submitted by the parties. Id. at 728 (¶21). During the couple’s divorce proceedings, the wife submitted no evidence to the chancellor related to valuation other than her Rule 8.05 statement, while the husband did provide some documentation supporting his valuation of the marital property. Id. at (¶18). The chancellor ultimately valued the property based upon the husband’s documentation, which the wife appealed. Id. In upholding the chancellor’s valuation, the Supreme Court stated that it “refuse[d] to blame the chancellor for a party’s failure to present sufficient evidence of property value.” Id. at (¶20). The Supreme Court further held that “the chancellor’s duty is not to obtain appraisals of marital property.” Id. (citing Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (Miss. Ct. App. 1999)). Where the parties present the chancellor with “less than ideal” proof, the Supreme Court held that the chancellor may rightfully use the available proof to arrive to the best conclusion possible. Id. at (¶21).

¶27. Here, the chancellor found Michael’s $500,000 valuation to be speculative and unsupported by any evidence, other than his Rule 8.05 financial statement. While Lisa also failed to submit an appraisal at trial, the chancellor found that her $126,170 valuation matched the Jackson County Tax Collector’s bill and valuation. Again, we cannot fault the chancellor for the parties’ lack of evidence. As such, we also cannot say that the chancellor
committed manifest error by using the best information available to value the marital home.


  • A common and ridiculous practice is for parties to assign high values to items they agree for the other to have, and low values to items that they want for themselves. In one case I had where the parties agreed that the husband would have ownership of a riding lawnmower, the wife valued it at $18,000, and the husband valued it at $200. There was no testimony that it was either gold-plated or rusted out, so I settled somewhere in the lower extremity of that range. The case was affirmed on appeal, so I guess I did something right.
  • I think it’s malpractice if you don’t go over your client’s 8.05 in advance of trial and challenge the figures. You need to ask, among others: how did you come up with this figure?; are you really spending $700 a month on gas and oil?; why is the spinet piano valued at $10,000? If you don’t get those kinds of things straightened out in your office, you are sending your client off like a sheep to the slaughter.
  • On a related note, those of you who don’t work with your clients on their 8.05’s should know that it is painfully obvious that you neglected this aspect of client representation. Figures don’t add up. Some are almost illegible. One I saw actually had a dirty footprint on the front page. Another chancellor calls those “Parking Lot 8.05’s” because they look like they were hastily scrawled in the parking lot before entering the courthouse — and they probably were.

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