Is HCIT of a Child Proof of HCIT of a Parent?

August 23, 2016 § Leave a comment

The marriage of Propst and Ty Pittman was by all accounts a stormy one that involved physical conflicts. There was testimony also that Ty had been physically violent in his dealings with the parties’ daughter, Tyler.

Propst filed for divorce from Ty on the ground of habitual cruel and inhuman treatment (HCIT).

After Propst rested in her case in chief, Ty moved per MRCP 41(b) to dismiss for failure of Propst to meet her burden of proof on the grounds for divorce. In a 10-page ruling, the chancellor analyzed the evidence. He concluded that Propst had failed to meet her burden of proof because her evidence was in general terms, the police had never been called to the disturbances, and she had only sought medical attention with respect to one incident. The judge did not address the testimony as to the incidents involving solely Tyler.

The COA affirmed, and the MSSC granted cert. In its decision in Pittman v. Pittman, rendered June 2, 2016, the court noted that, “In his ruling, the chancellor failed to make any factual findings regarding the violence against Tyler [Fn omitted]” and “We acknowledge that this Court has not made a clear pronouncement that violence against a child can be considered as habitual cruel and inhuman treatment of a spouse, and we thus recognize that this lack of a clear pronouncement may be why the chancellor understandably failed to make any factual findings regarding the violence against Tyler.”

The majority opinion, by Justice King, continued at ¶14:

… Thus, we will examine the legal question of [Fn omitted] whether violence against a child may be considered in the determination of whether one spouse has engaged in the habitual cruel and inhuman treatment of the other spouse. This Court has certainly considered the traumatic and detrimental effect a tumultuous marriage has on children when considering whether a divorce should be granted based on habitual cruel and inhuman treatment.[Fn 6] See, e.g., Richard, 711 So. 2d at 889. Moreover, the Court of Appeals, a court which chancery courts are bound to follow, has considered evidence of child abuse or mistreatment as conduct that supports granting a divorce based on habitual cruel and inhuman treatment. In  Jones, the Court of Appeals detailed the husband’s inappropriate sexual behavior with the couple’s children and considered it as supporting the chancellor’s grant of divorce for habitual cruel and inhuman treatment. Jones, 43 So. 3d at 476-77. The Court of Appeals noted that the wife “found this behavior offensive and alarming.” Id. at 477. In Keller v. Keller, a case incorrectly cited by the chancery court in this case, [Fn 7] the Court of Appeals noted that the record indicated that the husband had committed at least one instance of physical violence, by throwing a shoe at his wife, that he refused to have sexual relations with his wife and told her to “get a boyfriend” if she wanted sexual relations, that he forced his wife to do heavy physical work in the house and yard without his help, and that he humiliated her in front of family and friends. Keller v. Keller, 763 So. 2d 902, 908 (Miss. Ct. App. 2000). The Court of Appeals found that “[w]hether these facts alone would have been sufficient or not, we find the scales to shift markedly in favor of the divorce with the evidence that Mr. Keller beat his wife’s son from her first marriage[.]” Id. The Court of Appeals detailed the physical and verbal abuse of the child, as well as Mr. Keller’s demands that Mrs. Keller convey custody of her son to her ex husband or her parents, and stated that “[t]his was ‘cruel and inhuman treatment.’” Id. at 908- 09.

[Fn 6] The chancellor in this case did not appear to consider the detrimental effect of the tumultuous marriage on the children. Part of his reasoning for dismissal was that Propst was more concerned with the effects of Ty’s derogatory comments toward her on the children, than on herself.

[Fn 7] The chancery court stated that “In the afore-cited Keller v. Keller, the Court did not find sufficient grounds to award a divorce.” At that point, the chancellor then stated that the evidence in the case at hand did not meet the elements of habitual cruel and inhuman treatment. In Keller, both the chancery court and the Court of Appeals found sufficient grounds to award a divorce based on habitual cruel and inhuman treatment. Keller v. Keller, 763 So. 2d 902, 904, 908-09 (Miss. Ct. App. 2000).

¶15. It is common sense that abuse or mistreatment of a person’s child may constitute cruelty to that person. [Fn 8] Such conduct may certainly be “so unnatural and infamous as to make the marriage revolting to the” party seeking relief and “render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance,” provided the party seeking relief proves by a preponderance of the evidence that the abuse or mistreatment of the child was so unnatural and infamous to the party as to make the marriage revolting to that party, or that it contributes, along with other factors, to rendering the marriage revolting to that party. See Richard, 711 So. 2d at 888. Indeed, “[i]t would be difficult to imagine a course of conduct that would be more intolerable or unbearable, or that would be more subversive of the family relationship, than harsh and abusive treatment of a child.” Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962). We take this opportunity to clarify that chancery courts may consider evidence of child abuse or mistreatment as conduct supporting the grant of a divorce based on habitual cruel and inhuman treatment. [Fn 9] It is not clear that the chancery court in this case considered the alleged instances of physical violence and other mistreatment by Ty against Tyler in determining whether Propst had presented evidence of habitual cruel and inhuman treatment sufficient to defeat Ty’s Rule 41 motion to dismiss; thus the court did not apply what we now clarify is the appropriate legal standard. We therefore reverse the chancery court’s grant of Ty’s Rule 41 motion to dismiss and remand the case for further proceedings so that the chancellor may have the opportunity to consider the violence against Tyler in light of our clarification of the law. On remand, the chancellor should specifically consider and make findings regarding Ty’s treatment of Tyler in determining whether Propst has presented evidence sufficient to defeat Ty’s Rule 41 motion to dismiss regarding her entitlement to a divorce based on cruel and inhuman treatment.

[Fn 8] Additionally, trapping spouses and children in familial arrangements simply because the child, rather than the spouse, was the victim of abuse or mistreatment makes little sense and it certainly cannot have been the Legislature’s intent to imprison those children in abusive situations simply because their nonviolent parent could not obtain a divorce. Incidentally, the nonviolent spouse would have a duty to report any child abuse or neglect committed by the other spouse. See Miss. Code Ann. § 43-21-353(1) (Rev. 2015). That parent could also be held criminally liable in certain instances for failing to report his or her spouse. See Sherron v. State, 959 So. 2d 30 (Miss. Ct. App. 2006) (mother who helped minor child get an abortion after rape by mother’s husband found guilty of being an accessory after the fact to statutory rape, and was not entitled to a mitigating defense instruction that a failure to report was not a crime, because she did have an affirmative duty to report the abuse of her daughter).

[Fn 9] Other states have held likewise. See Jaikins v. Jaikins, 122 N.W.2d 673 (Mich. 1963) (noting the court’s duty toward the children, and stating that “mistreatment of children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty by the guilty party which justifies a divorce.”); Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962) (Mistreatment of a child constitutes an “indignity.”).

The court noted in Fn 6 (omitted in this post) that the GAL had developed some evidence of physical violence toward Tyler.

HCIT has been the graveyard of many a divorce case. This holding will give you an additional avenue by which you can make a viable case.



The Power of Prayer

August 16, 2016 § 1 Comment

In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:

” … he’d better pray longer and harder.”


August 9, 2016 § 6 Comments

Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.

After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.

In her case in chief, Lonnie presented testimony that Les:

  • Was uncommunicative, controlling, and belittling.
  • Was unwilling to spend time with her or to schedule family vacations.
  • Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
  • Refused to give her compliments or to acknowledge her contributions to their life.
  • Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
  • Refused to give her money to buy groceries because he might not like the food she bought.
  • Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”

Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.

For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.

The chancellor ruled that Lonnie had failed to  prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.

In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.

I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.

What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).

Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”

I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.

People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.

I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.


Who You Gonna Believe?

July 18, 2016 § 1 Comment

In the hilarious comedy, Duck Soup, Groucho Marx is caught by his lady-friend in flagrante delicto with another woman. When she accuses him of the obvious, he retorts, “Who you gonna believe, me or your lyin’ eyes?”

That popped into my head when I read the COA’s decision in Stuckey, Conservator of Waid v. Waid, decided June 28, 2016. Stuckey, who was special conservator of Lila Waid, an end-stage Altzheimer’s victim, became convinced that Lila’s husband Herman Waid was having an affair with an old flame. At the time of trial, Herman was 84 years old and was suffering from Parkinson’s Disease. The plaintiff presented proof that Herman and his lady-friend, JK, were seen lying together in Herman’s hospital bed, and they spent time together at each other’s homes, often in the bedroom. They were seen being affectionate toward one another. In defense, they denied any sexual relations. Herman contended that he was impotent, and suffered from erectile dysfunction. JK stated that she wished that the relationship were more than friendship.

The chancellor issued a 12-page opinion denying the divorce, and Lila appealed. The COA affirmed. What I want to call to your attention is how it is up to the judge to choose who to believe, and how much weight to give to the evidence presented. Here is how Judge Fair, for the court, stated it:

¶16. We find there was substantial evidence to support the chancellor’s finding. Herman and J.K. both testified that their relationship was not romantic. They admitted to staying together overnight, but there was no evidence of a sexual relationship. See Atkinson [v. Atkinson], 11 So. 3d at 176-77 (¶19) [(Miss. App. 2009)](finding that cohabitation does not prove adultery by clear and convincing evidence). None of the conduct described in the eyewitness testimony meets the definition of adultery. See Owen [v. Gerity], 422 So. 2d at 287 [(Miss. 1982)]. Further, the chancellor was presented with uncontradicted evidence of Herman’s impotence, which would make it impossible for him to satisfy any inclination.

¶17. As the judge of credibility, the chancellor is entitled to choose between reasonable interpretations of the evidence and the inferences that may be drawn therefrom. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). The evidence of record is facially sufficient to support a finding of adultery, as stated in the dissent. But the evidence is, likewise, facially sufficient to support a finding that adultery did not take place. The trier of fact is not this court but the chancellor, who heard the testimony of the witnesses, determined their credibility, weighed that and other evidence, and made a decision within her discretion. After viewing the record, we are therefore satisfied that the chancellor did not abuse that discretion, was not manifestly wrong, was not clearly erroneous, and applied the proper legal standard in making her decision. We thus affirm.

Nothing really earth-shaking there, but it’s a good reminder that the chancellor has broad power to choose whom to believe and how much weight to assign to the evidence. As long as the chancellor’s decision is supported by substantial evidence and applies a proper legal standard, the result will be an affirmance on appeal. That is even true, as in this case, where there was substantial evidence to support an opposite result.

Periodic or Lump-sum?

June 22, 2016 § Leave a comment

When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:

“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”

Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.

Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.

In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.

Some observations:

  • Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
  • As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
  • In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
  • Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
  • As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?


What You Say and How You Say it

June 13, 2016 § Leave a comment

When Lori and Gary Mosher appeared for the divorce trial to end their 26-year marriage, they agreed to a divorce on the ground of irreconcilable differences, and submitted several contested issues for adjudication by the court.

The parties agreed that Lori would receive “one-half of [Gary’s] military retirement,” but left it to the court, apparently, to decide the amount. The chancellor found that Gary’s “military retirement” consisted of two components: “his disposable retired pay”; and his VA disability retirement of around $400 a month. Half of the two components came to $1,795, after deduction for a survivor annuity. Since the VA benefit was not subject to division under federal law, the chancellor awarded Lori a greater share of the retirement.

Gary appealed, complaining that the chancellor had no authority to divide the VA benefits because their agreement was to divide the military retirement only.

The COA affirmed on the point in Mosher v. Mosher, handed down May 24, 2016. Judge Fair wrote for the majority:

¶8. This argument misses the mark. Although it is true that the parties here agreed to divide the “military retirement” equally, the property settlement agreement did not specify what that was. Property settlement agreements are contracts, and like all contracts, there are sometimes disputes regarding the meaning of their terms. Gaiennie v. McMillin, 138 So. 3d 131, 135 (¶8) (Miss. 2014). It is apparent that the chancery court interpreted the parties’ agreement rather than disregarding it as Gary contends. The chancellor dedicated nearly ten of the fifty-six pages of her written judgment to this question.

¶9. As to the interpretation of the agreement, while it is clear Gary does not agree with the chancellor’s decision, he has not briefed that issue. “[T]here is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error to [the appellate court].” Birkhead v. State, 57 So. 3d 1223, 1231 (¶28) (Miss. 2011); see also M.R.A.P. 28(a)(6). Gary has failed to meet his burden of showing error on this issue.

There are other issues addressed in the opinion dealing with equitable distribution and alimony. Judge Carlton dissented in part, joined by Greenlee and Griffis.

The main takeaways here for practitioners:

  • What you say and how you say it are pretty dadgum important when it comes to court. If the parties intended that only the military retirement, not including the VA disability retirement, was to be divided, then the agreement should have stated exactly that. Precision makes all the difference. It’s pretty hard to argue that something was intended when that intent does not appear in the specific language.
  • If you do not cite authority for your position on appeal, you have effectively waived it.


Can Your Client Do What She Agreed to Do?

May 24, 2016 § Leave a comment

When Karen and Rickey Chance got an ID divorce in 2003, the parties’ PSA provided that Karen would get ownership of a home in Ocean Springs. Rickey was to be responsible to obtain a 30-year mortgage on the property, and to pay the mortgage debt and one-half of the ad valorem taxes for 96 months. Karen was responsible to pay her one-half of the ad valorem taxes, the hazard insurance, and to pay all taxes, insurance, and mortgage debt payments after Rickey’s obligation expired. Rickey also was to pay Karen alimony.

In 2004, Rickey got the mortgage, and the closing attorney suggested in a letter that Rickey simply reduce his alimony payments by the amount of Karen’s monthly obligation, but neither party acted on the recommendation.

To make a long story somewhat shorter, Karen never paid either her half of the taxes or the hazard insurance between 2003 and 2013. In 2013, Karen did send Rickey nearly $4,500 to pay her share of the 2013 expenses.

In the 10-year interim between 2003 and 2013, the parties talked about the situation. Karen steadfastly maintained that she did not have the financial ability to carry out her end of the deal.

In 2013, Rickey filed a petition for contempt against Karen, who responded with several defenses, most notably that of inability to pay. After a hearing the chancellor awarded Rickey a judgment for $38,584.90, and attorney’s fees. Karen appealed.

In the case of Chance v. Chance, decided May 10, 2016, the COA affirmed. You can read the opinion for yourself to see how the court dealt with Karen’s claims of laches, inability to pay, and error in award of attorney’s fees.

I want to focus on the agreement itself:

  • I have seen several PSA’s lately in which one party agrees to refinance the home within some stated period of time. In every case, when I asked the lawyer whether the obligated party had the ability to do it, the answer was a shrug with a whimsical smile and “that’s what they agreed to do.” Yes, but if it’s your client who is on the hook, have you discussed whether he or she has the ability to do it? And if it’s the other party who has the duty, what impact will it have on your client if he or she proves incapable of doing as promised? Have you explored these things?
  • One critical reason why this is so important to your client’s interest is that the property-division portions of a PSA are unmodifiable. East v. East, 493 So.2d 927, 931 (Miss. 1986). Your client does not get a do-over on the “oops” principle.
  • Another important factor is that attempting to prove inability to pay is rarely successful. The burden is heavy, as I have pointed out here before.
  • To avoid these swivet-inducing situations, build some alternatives into the agreement. If, say, your client ever can not pay her share of the taxes or insurance, the home could be listed for sale, the other party may reduce alimony and pay the taxes and insurance himself until sold, and he will be reimbursed from the proceeds. That’s one example; I am sure your creative legal genius can conjure up many others.
  • Remember that if all you do is take your client’s notes and convert them into a legal-looking sheaf of papers, you are nothing more than a clerk-typist; you are misleading the public and fooling yourself if that’s what you do and you call yourself a lawyer.



What isn’t There Can Make a Big Difference

April 11, 2016 § Leave a comment

Dee Myrick filed a Complaint for Divorce against her husband, John, in 2013. The complaint was based on the fault ground HCIT. At a temporary hearing, the chancellor ordered John to pay temporary alimony.

Later, the parties withdrew fault allegations and entered into a consent for divorce on the ground of irreconcilable differences. The contested issues submitted for adjudication were: “property division including allocation of debt”; attorney’s fees; and “division of all real property.” Alimony was not mentioned.

Following a trial and rehearing motions, the chancellor divided the marital estate and awarded Dee $600 a month in periodic alimony. John appealed the award of alimony.

In Myrick v. Myrick, decided February 23, 2016, the COA reversed on the issue of alimony and remanded. Judge Barnes wrote for the court:

¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.

Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a creature of statute,” and the parties must strictly adhere to the statutory mandates of irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).

¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable  differences. She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November 2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month to Dee in lieu of the house payment.

¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable differences divorce. It listed matters the chancellor should decide as “property division, including allocation of debt”; attorney’s fees; and “division of all real property.” No mention was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault grounds. The chancellor had, however, ordered the temporary relief of alimony when the divorce sought was based on fault grounds, rather than irreconcilable differences.

¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable differences-divorce case because the consent failed to comply with required statutory language, and the parties failed to set forth with specificity the issues to be decided by the court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16). Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he cannot now award it.

¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss. Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to consider an award of attorney’s fees in a divorce action where the parties did not include this issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support, and equitable distribution because the parties stated in their consent agreement the only issue the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d at 926 (¶12).

¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of “property division” analysis, and is therefore proper here, citing the Ferguson factor regarding “the extent to which distribution can eliminate future periodic payments.” Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute is clear that the resolution of all issues must be specifically set forth in the consent agreement. The court’s award of periodic alimony was without authority and must be reversed.

The court remanded rather than render for Ken because the chancellor had originally ordered Ken to pay Dee lump-sum alimony “based on need.” The COA instructed that, on remand, the chancellor was to clarify whether the lump-sum alimony was part of property division, which could be reinstated, or was alimony, which could not.

It makes perfect sense that, if something is left out of a negotiated agreement such as a consent, it should be assumed that its omission came about as a result of negotiation. The statute requires that all contested issues be clearly set forth. If you leave something out, unless the other side agrees to let it in, you won’t be able to get it in.

An Agreement to Agree is not an Agreement

March 29, 2016 § Leave a comment

Ken and Lauren Moreland agreed in their irreconcilable divorce to the following provisions:

Kenneth Moreland shall pay one-half (1/2) of all expenses of the minor child for up to two (2) extracurricular activities and the reasonable age appropriate activities of the minor child which the parties agree are reasonable and necessary for the minor child.

The parties shall be responsible for one-half (1/2) of all preschool and/or private school tuition and expenses for the minor child attending preschool and/or private school, until graduation, including but not limited to registration fees, school uniforms, school supplies, lunches and any other expenses due to the school or as a result of the minor child attending school if the parties agree to enroll [the child] in a private preschool or school. [Emphasis added]

In Moreland v. Spears, handed down March 1, 2016, the COA held (at ¶11) that the italicized language required the agreement of both parties before Ken became obligated under the divorce contract to pay any part of those expenses. Since Ken never agreed, he was not bound to pay.

The very purpose of a contract is to create an agreement that is enforceable in a court of law. It’s a basic principle of contract law that a mere agreement to agree is no contract. See, e.g., Intrepid, Inc. v. Bennett, 176 So.3d 775 (Miss. 2015).

I have seen many PSA’s with similar provisions, and I always ask from the bench whether the party understands that there is no obligation if the other party does not agree. Most of the time the cheery, optimistic answer is that no problem is expected, and that, surely, the other party will “do the right thing.” To that, I always warn that if (s)he does not, no court can make him or her do the right thing under the terms of this agreement. Occasionally, the party will ask to go back to the drawing board. That’s the wiser course.

If you’re going to include Moreland-like language in a PSA, be sure to advise your client of the pitfalls. Better still: put it in writing and have your client acknowledge receipt by signing it.

Mopping Up After the Divorce

January 11, 2016 § Leave a comment

What do you do when the divorce trial is concluded, the final judgment has been entered, and the post-trial motions have been disposed of? If there’s not going to be an appeal, you just make sure your bill is paid, shake your client’s hand, usher him to the door, wish him luck, say farewell, and shut the door behind him, right?

Well, not exactly.

Do you know whether your client still has his ex-wife named in his will? What about as beneficiary of his life insurance, or survivor on his IRA or 401(k)? Does he still have his ex as POD or survivor on any checking or securities accounts?

I read an article written by a financial advisor recently in which she related an encounter with a newly-married couple, both of whom had been divorced several years before. Both husband and wife had wills that still named ex-spouses as beneficiaries, and the same with life insurance and retirement accounts. When she asked them why they had not been changed, both replied that no one had advised them that they should.

A case in my court recently brought up a similar problem. The wife in the divorce case insisted that she owned the marital residence because the PSA in her 2007 divorce (more than 8 years ago) provided that her ex would execute a special warranty deed conveying his interest to her. Only problem: he never did. So, since May of 2007 she has remained a joint tenant with right of survivorship with that man. If she had died before he tended to that little bit of finish-work, her estate would have to pay another lawyer to do what her divorce lawyer should have done in the first place, and it probably would have involved courtroom billable hours.

Years ago, a man hired me to obtain a QDRO to divide his 401(k) account. He had represented himself in the divorce that took place nearly ten years before. When the divorce was final, he had asked the lawyer who represented his wife how to go about getting the retirement account divided. The lawyer pointed out that he did not represent him, and virtually slammed the door in his face. When the client at last decided to get remarried, he thought that it was time to get the matter tended to, so he hired me. Here is how the PSA read:

The parties agree that wife shall receive the sum of $60,000 from Husband’s 401(k) account.

That was all it said. [For a post on what that 401(k) language should have included, click here]

So we filed a petition for the court to enter a QDRO for her to receive exactly that — $60,000. After being served with process, she went back to her divorce lawyer, who called me and pounded the table, insisting that she was entitled to ten years’ worth of interest. I pointed out that the agreement he had drafted did not have a time frame for payment, that neither party was obligated by the agreement to prepare a QDRO, that there was no interest provision, and that the only definite thing about it was the amount. He called me back a few days later and said his client was willing to settle for the $60,000, and they signed the QDRO, which was entered and the matter finalized. For ten years my client earned money using his ex’s money. Had her lawyer acted in her best interest, he would have gotten that QDRO entered immediately after the divorce judgment.

You might well ask, as I did when my client first hired me, why was his ex not screaming for her money? Well, in the ten years after the divorce she asked him about once a year if he still had her money. She was satisfied with his answers, but apparently no one ever advised her what she was losing by not getting that QDRO entered.

You might also inquire whether my client was unjustly enriched. I would agree that he was, indeed, enriched, but not unjustly so. He did not sleep on his rights. He did not draft the agreement. It was not his obligation to calculate her separate interest. She was wise to want to settle for the principal sim, because if she had wanted to obtain a court ruling that he had been unjustly enriched, and directing him to disgorge any interest received on her money, she would have had to pay the attorney to pursue it, and likely would have  had to pay a CPA to calculate the interest and testify as an expert. After paying those folks, she would be lucky if she got to walk away with the $60,000.

Another nightmare scenario involves credit cards. I represented a man in a routine irreconcilable differences divorce. The PSA provided that each would pay the debts in his or her own name, as well as debts incurred in the name of or against the credit of the other. Thank goodness for that specific language, because he came in a year or so later with a letter from a credit card company reporting that an account in joint ownership was in default and making demand on him to pay more than $10,000. Turns out that shortly before the separation his wife had opened one of those accounts the company had solicited by mail, signing her husband’s name, and kept the account concealed from him. Then, after the divorce, she used it to supplement her income. We notified her that she had so many days to pay the account in full or we would sue. She borrowed money from her family, paid it off, and the account was closed. My client’s credit rating took a hit, but that and a modest legal fee were his total damages.

Lesson learned: it might not be a bad idea in the course of a divorce case to have your client run a credit check.

All of this boils down to a simple professional consideration that I have mentioned many times here: When the case is concluded, your client wants to be finally done with it, and she does not want to have to pay another attorney to clean up after you.

Actually, many of these things can be tended to before the divorce is concluded. That deed can be prepared, joint accounts closed, wills changed, bills of sale signed, agreed QDRO signed by the parties, and so on, with the originals held in the lawyer’s file until the judgment is entered.

When you are through with the divorce, help your client through the aftermath. Make sure she revokes all wills naming the ex as a beneficiary. Make sure there are no financial assets not covered by the divorce judgment that are joint, or have survivorship provisions. Make sure that there are no outstanding joint debts not addressed in the divorce. If a QDRO or deed is required for your client’s benefit, get it done ASAP. People are dying every day. You don’t want one of them to be the person you need to finish up your work.

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