The Value of Valuation
June 11, 2020 § Leave a comment
In the divorce case between Missy and Randy Norwood, the only evidence in the record of property values was in the form of the parties’ 8.05 financial statements. This despite the fact that the property in dispute for equitable division included 129 acres of land with poultry houses, a residence with 3.37 acres and the poultry business. Missy’s financial statement assigned a gross value of $1,148,000, and Randy’s total was $840,000. There was debt. The chancellor sorted through it as best he could, assigned values, and divided the estate. Unhappy with the division, Missy appealed.
The COA affirmed in Norwood v. Norwood, decided May 12, 2020. Judge McCarty wrote the 5-4 majority opinion:
¶11. “It is within the chancery court’s authority to make an equitable division of all jointly acquired real and personal property.” Martin v. Martin, 282 So. 3d 703, 706 (¶7) (Miss. Ct. App. 2019) (quoting Bullock v. Bullock, 699 So. 2d 1205, 1210-11 (¶24) (Miss. 1997)). “This Court reviews a chancery court’s division of marital assets for an abuse of discretion.” Id. “We will not reverse a chancery court’s distribution of assets absent a finding that the decision was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id.
¶12. “Our Supreme Court has held that the foundational step to make an equitable distribution of marital assets is to determine the value of those assets.” Id. at (¶8) (internal quotation mark omitted). From there the chancery court must equitably divide the marital property according to the factors first articulated in Ferguson. Id. at 706-07 (¶8). [Fn omitted]
¶13. Now on appeal, Missy claims error in the chancery court’s valuation of the marital assets. However, the chancery court relied upon the evidence provided by the parties in valuation and distribution. The general rule is that “[i]t is incumbent upon the parties, not the chancery court, to prepare the evidence needed to clearly make a valuation judgment.” Id. at 707 (¶10). In Martin, the wife had complained that the husband received more than her after the chancery court’s distribution of assets. Id. at 706 (¶6). Yet, “[d]espite numerous requests from the chancery court, neither party provided the court with a single valuation of the assets at issue,” “[t]here was no testimony of the market value of the real property,” and “[a]ppraisals were never conducted.” Id. at 707 (¶9).
¶14. In light of the general rule, we affirmed the court’s decision regarding property distribution. Id. at (¶13). For “[w]here a party fails to provide accurate information, or cooperate in the valuation of assets, the chancery court is entitled to proceed on the best information available.” Id. at (¶10); see also Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003) (“This Court has held that when a [chancery court] makes a valuation judgment based on proof that is less than ideal, it will be upheld as long as there is some evidence to support [its] conclusion.”).
¶15. In this case, the chancery court considered all of the evidence before it—both parties’ Rule 8.05 financial statements and their in-trial testimony. It is clear that more and better proof would have been helpful to the chancery court. But the fact that there was little proof does not automatically warrant a reversal of the chancery court’s determination of this issue. As we declared nearly two decades ago, “[t]o the extent that further evidence would have aided the chancellor in these decisions, the fault lies with the parties and not the chancellor.” Ward v. Ward, 825 So. 2d 713, 719 (¶21) (Miss. Ct. App. 2002).
¶16. The dissent cites Mace v. Mace, 818 So. 2d 1130, 1133-34 (¶¶13-14) (Miss. 2002), to suggest we should remand due to the lack of an expert’s valuation of the marital property. In that case, the Mississippi Supreme Court reviewed the valuation of a medical practice, which the trial court had assessed at $374,000, including the value of the building and equipment. Id. at 1133 (¶13). Because of the complexity of the issues, and because “it [was] abundantly clear from the testimony that the valuation of the practice was unreliable,” the Supreme Court reversed and remanded for a more comprehensive valuation. Id. at 1134 (¶¶15-16).
¶17. However, Mace did not create a requirement that only an expert can conduct a property valuation before an equitable division can be determined. Parties may choose not to hire an expert or not have the resources to do so. Unlike the complex proof needed in Mace, this is not a case that requires clarification on remand. The chancery court was not impeded in this matter because of the proof presented at trial. The chancery court found that “Randy’s 8.05 Financial Statement shows minimal income from the poultry operations” and that both Randy and Missy agreed the expenses he listed from the poultry farm were accurate. There is no reason to re-try this case when there is “minimal income” and the expenses were not in dispute.
¶18. Because it is the parties’ duty, and not the chancellor’s, to prepare and submit evidence for a valuation judgment, we find no abuse of discretion. It is clear that the chancery court’s decision was based upon the proof mustered by the parties at trial. It was the parties’ decision at trial to present slim proof. That choice will not result in reversal on appeal. This decision is affirmed.
As the court points out in ¶17, there are legitimate reasons why parties may choose not to have property appraised by a professional. Cost most certainly can be a factor. The parties may simply choose to leave it up to the chancellor to decide, although that is usually a crap shoot.
You can use requests for admission to help nail down values.
Just remember that the less precise your proof the more the matter falls within the chancellor’s discretion and judgment. And if there’s any proof at all in the record to support her findings, your chances of getting her reversed are practically nil.
Constructive Desertion
June 9, 2020 § Leave a comment
It’s not often that constructive desertion cases come around, particularly on appeal, so when one does, it is noteworthy.
Kevin Watson claimed that his wife Carole was guilty of constructive desertion of him, entitling him to a divorce. Following a trial, the chancellor agreed and granted Kevin a divorce on that ground. Carole appealed.
In Watson v. Watson, decided June 2, 2020, the COA reversed and rendered. Here is how Judge McDonald’s opinion for an 8-0 court (Barnes not participating) addressed the issue:
¶8. The chancellor found that Kevin was entitled to a constructive-desertion divorce because “many instances [of Carole’s behavior] rise to the requisite level of conduct.” In so doing, the chancellor mentioned one specific incident that occurred during Kevin and Carole’s March 2013 trip to the British Virgin Islands. Otherwise, the chancellor found that Kevin was entitled to a constructive-desertion divorce due to “Carole’s combative public outbursts” and “Carole’s constant, and in many cases, irrational accusations against Kevin.”
¶9. The Mississippi Supreme Court has held that a constructive-desertion divorce is available under the following limited circumstances:
If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will not be guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.
Benson v. Benson, 608 So. 2d 709, 711 (Miss. 1992) (quoting Day v. Day, 501 So. 2d 353, 356 (Miss. 1987)). Said differently, “constructive desertion occurs when the innocent spouse is compelled to leave the home and seek safety, peace, and protection elsewhere because the offending spouse has engaged in conduct that would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety.” Hoffman, 270 So.
3d at 1126-27 (¶24) (internal quotation marks omitted) (quoting Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949)). [Fn 2] “Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases.” Id. at 1127 (¶24).
[Fn 2] “The line between . . . constructive desertion and . . . habitual cruel and inhuman treatment is blurred . . . .” Hoskins v. Hoskins, 21 So. 3d 705, 710 (¶21) (Miss. 2009). “[T]he only distinction” is that in a constructive-desertion case, one spouse “is compelled to leave and the [other spouse’s] objectionable conduct continues for a year.” Id.
¶10. The case is not one of those extreme circumstances. One basis the chancery court used to grant Kevin a divorce occurred in March of 2013. Kevin testified that Carole must have drugged him one night during their trip to the British Virgin Islands “[b]ecause one minute [he] was fine, and the next minute [he] wasn’t[,]” and Carole “always had Xanax and the drugs that she got . . . from her psychiatrist.” Although Kathy Boyd, who was among the four other people on the trip, said she “felt like Kevin had been given something” because his state was inconsistent with the alcohol that he consumed, neither she nor Kevin testified that they saw Carole put anything in Kevin’s drink. [Fn 3] There was also testimony in the record that both Carole and Kevin often drank to excess.
[Fn 3] Although Kevin also testified that “there were other instances . . . where that very same scenario took place . . . ,” he did not elaborate regarding when or how often those “other instances” occurred.
¶11. In addition to the insufficient evidence that Carole “drugged” Kevin on the trip, the March 2013 incident did not cause Kevin to leave the marital home. He continued to live there after the trip. Kevin did not tell Carole that he wanted a divorce until December 2013 and did not leave the marital home until approximately a month later. Thus, Kevin endured the supposedly unendurable marriage for approximately ten months after the incident in the British Virgin Islands.
¶12. As for Carole’s “combative public outbursts,” the evidence shows that during the seven years of their marriage, Carole once yelled at a restaurant staff, yelled at two women who cut past her in a line at a concert, and that she blurted out private marital details during a September 2013 dinner with friends. Again, however, this does not constitute substantial credible basis to conclude that Kevin was compelled to leave the marital home.
¶13. Kevin testified that the marriage first became unendurable for him during the summer of 2009 when Carole failed to adequately take care of herself, him, and the marital home. Those were three provisions of their unwritten four-point agreement that they purportedly entered when she stopped working in the latter part of 2007. Kevin also said that the marriage was unendurable because he and Carole “can’t stand to be in the same room together. I mean, it’s just unhealthy [and] . . . stressful. It’s depressing.” But Kevin continued to live with Carole for years thereafter.
¶14. As previously mentioned, our supreme court has commanded that constructive desertion divorces are available only in “extreme” circumstances. Lynch v. Lynch, 217 Miss. 69, 81, 63 So. 2d 657, 661 (1953). In one case, a constructive-desertion divorce was upheld where a wife ignored her blind husband’s protests and frequently left him at his relative’s house for days, left him without food during the week, and allowed her disrespectful grandson to live in the marital home for three years against his protests. Deen v. Deen, 856 So. 2d 736, 737 (¶¶4-6) (Miss. Ct. App. 2003). A constructive-desertion divorce was also available when a husband was subjected to his wife’s false accusations of adultery several times a week for approximately ten years. Lynch v. Lynch, 616 So. 2d 294, 295-97 (Miss. 1993). But a constructive-desertion divorce is not a remedy when a husband merely says there is “no marriage” and “no relationship,” and he began having an affair nearly one year before he left the marital home. Grant v. Grant, 765 So. 2d 1263, 1267 (¶¶10-11) (Miss. 2000). [Fn 4]
[Fn 4] The chancellor acknowledged that Kevin and another woman had been involved in a clandestine and emotionally romantic relationship for several months before Kevin told Carole that he wanted a divorce. Their relationship became physical approximately two weeks after Kevin finally left the marital home. Kevin did not disclose his relationship to Carole before he left, but she discovered it a few months later. The chancellor did not find that Kevin left Carole because he preferred to be with his paramour.
¶15. After a thorough review of the transcript and record, it is clear that Kevin became increasingly unhappy in the marriage because he felt as though Carole was not fulfilling her marital obligations to take care of herself, him, and the domestic sphere of the relationship. Carole certainly leveled many accusations against Kevin that were not borne out by the record. Suffice it to say, there was clearly a significant amount of mutual animosity by the time of the divorce trial years later. But it would be unreasonable to find that Kevin’s abandonment of the marital home was the natural consequence of an alleged incident on a trip they took months earlier. See Griffin, 207 Miss. at 504, 42 So. 2d at 722. And it was undisputed that Kevin remained in the marital home for still another month after he told Carole that he wanted a divorce.
¶16. Notwithstanding the clearly acrimonious feelings between Carole and Kevin, the substantial credible evidence shows that “this case is yet another in our developing litany where . . . the problem [in the marriage] is [the couple’s] fundamental incompatibility.” Day, 501 So. 2d at 355. As such, this is not one of the “extreme cases” contemplated by our supreme court. It follows that we are compelled to reverse the chancellor’s judgment.
The main takeaway here is that constructive desertion is no easy path to a divorce. Not only must you make an “extreme case,” but you also have to prove the elements of desertion, about which I posted at this link. And don’t forget that the burden of proof is by clear and convincing evidence (HCIT is the only ground that requires only a preponderance of the evidence).
I’m still unsure why we don’t have some kind of incompatibility or separation ground for divorce. The argument I often hear against is that those would open the floodgates of divorce in Mississippi. That presumes that our restrictive laws are keeping those floodgates closed, which I perceive not to be the case at all. Every family-law practitioner in this state knows that our current statutory scheme fosters and even encourages “divorce blackmail,” which often results in inequitable and unfair settlements. I’m not sure that the state truly has a legitimate interest in preserving unhappy, unhealthy, and even dangerous marriages.
A Divorce Misfire
June 2, 2020 § Leave a comment
When the chancellor finds that the plaintiff has failed to meet the burden of proof to establish a ground for divorce, I call that a “misfire.”
After Karrah Wangler rested her case in chief for divorce against her husband, Richard, he moved to dismiss pursuant to MRCP 41(b), and the chancellor granted the motion, dismissing the complaint. Dissatisfied with the misfire, Karrah appealed.
The MSSC retained the case and, in its March 12, 2020, decision in Wangler v. Wangler, the court affirmed. The outcome is not all that remarkable, but the majority opinion includes a helpful exposition on the ground of HCIT. Judge Griffis’s opinion:
¶13. At the conclusion of Karrah’s case-in-chief, Richard moved to dismiss her complaint. In granting Richard’s motion and dismissing Karrah’s complaint for divorce, the chancellor found as follows:
[H]aving reviewed the pleadings, I’ve looked through all 13 exhibits that were admitted into evidence by stipulation, looking at the notes that I took during testimony, the [c]ourt finds that [Karrah] has failed to present adequate proof of habitual cruel and inhuman treatment[,] and after reviewing the standard set by the case law in the State of Mississippi, the [c]ourt is of the opinion that [Karrah] is not entitled to a divorce on the grounds of [habitual] cruel and inhuman treatment. So the [c]ourt would grant the motion to dismiss by [Richard].
¶14. Mississippi Rule of Civil Procedure 41(b) states, in pertinent part,
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.
¶15. “The standard of review applicable on motion to dismiss under Rule 41(b) is different [from] that applicable to a motion for a directed verdict.” Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 258 (Miss. 1997) (citing Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359 (Miss. 1992)).
In considering a motion to dismiss, the judge should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).”
Id. at 259 (emphasis omitted) (citations omitted). “[This Court] will overturn the chancellor’s decision on a Rule 41(b) motion to dismiss only if the findings are not supported by substantial evidence, or the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Pittman v. Pittman, 195 So. 3d 727, 732 (Miss. 2016) (citing Stewart, 700 So. 2d at 259). “Legal questions, however, are reviewed de novo.” Id. (internal quotation marks omitted) (quoting Sanford v. Sanford, 124 So. 3d 647, 652-53 (Miss. 2013)).
¶16. A divorce on the ground of habitual cruel and inhuman treatment requires the following to be shown by a preponderance of the evidence:
[C]onduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Osborne v. Osborne, 202 So. 3d 639, 641 (Miss. Ct. App. 2016) (citing Richard v. Richard, 711 So. 2d 884, 889 (Miss. 1998)). Additionally,
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
Miss. Code Ann. § 93-5-1.
¶17. “The conduct must consist of something more than unkindness or rudeness or mere incompatibility or want of affection.” Osborne, 202 So. 3d at 641 (internal quotation marks omitted) (quoting Horn v. Horn, 909 So. 2d 1151, 1155 (Miss. Ct. App. 2005)). “The offending spouse’s conduct . . . ‘must be shown to have been systematic and continuous.’” Baggett v. Baggett, 246 So. 3d 887, 892 (Miss. Ct. App. 2017) (quoting Horn, 909 So. 2d at 1155). “Further, the offended spouse must show a causal connection between the offending spouse’s conduct and the impact on the offended spouse.” Id. (citing Smith v. Smith, 90 So. 3d 1259, 1263 (Miss. Ct. App. 2011)). “Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct.” Id. (internal quotation marks omitted) (quoting Smith, 90 So. 3d at 1263). [Fn omitted]
The court went on for eight more pages to analyze the proof and ultimately agreed with the chancellor that Karrah had failed to meet her burden of proof.
In my court, where the grounds for divorce are contested, I require that the lawyers bifurcate the case and try it solely on the grounds. If the divorce is not granted, that is the end of that. If the divorce is granted, then the case proceeds to equitable distribution, alimony, and any other contested issues. The idea is that it saves the parties the expense of preparing to try the financial issues that the court might never reach if the divorce is denied. It also saves a couple of extra days in court if there is no divorce.
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.
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.
Thoughts:
- 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.
Jointly-titled Separate Property
April 13, 2020 § 3 Comments
Carrie Anderson’s grandmother decided to give her a 59-acre parcel of land in 2013. When she went to the family lawyer’s office to pick up the deed, she found that he had added the name of her husband, T.J., to it as joint tenant. She later said that she was afraid to insist that it be titled in her sole name because of T.J.’s temper.
In 2015 the parties consented to an ID divorce and the chancellor found the property to be part of Carrie’s separate estate. T.J. appealed.
In Anderson v. Anderson, the COA affirmed. Judge Tindell wrote for the unanimous court:
¶18. The chancery court found that the fifty-nine acres from Carrie’s grandmother jointly titled in Carrie’s and T.J.’s names was Carrie’s separate, non-marital property, as follows:
While some coercion may have been placed on Carrie to have T.J.’s name place on the deed [to the fifty-nine acres], even if there had been no coercion, the Court would still find the 59 acres to be Carrie’s separate, non-marital property. The property came from Carrie’s grandmother debt free. The parties never improved the property or put any money into the property.
The chancery court recognized that “[i]nter vivos gifts and inheritances are considered non-marital property unless they have been commingled.” McDonald v. McDonald, 115 So. 3d 881, 885-86 (¶12) (Miss. Ct. App. 2013). The chancery court found that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” Id. at 886 (¶¶12-14) (finding property purchased with funds inherited by a husband was the husband’s
separate property despite the property being jointly titled in both the husband and the wife); see also Marter v. Marter, 95 So. 3d 733,737-38 (¶¶11-16) (Miss. Ct. App. 2012) (finding that property inherited by a wife prior to marriage and later jointly titled remained the wife’s separate property); Delk v. Delk, 41 So. 3d 738, 741-42 (¶17) (Miss. Ct. App. 2010) (recognizing that condominium property separately owned by a wife prior to marriage but
later jointly titled did not become marital property until the couple began using the property as their marital home, and thus the husband was not entitled to a full half of the proceeds from the condominium). The chancery court expressly noted that “[t]he parties never lived on or improved the property. There was absolutely no commingling with marital property nor was the property utilized for domestic purposes.” Continuing, the chancery court found that the fifty-nine acres did “not los[e] its status as nonmarital property,” and ordered that T.J. deed his interest in the tract of land to Carrie.
¶19. T.J. asserts that the chancery court committed manifest error in this determination because the property at issue in this case was never Carrie’s separate property in the first place, and thus the cases the chancery court relied upon in making its determination, McDonald, Marter, and Delk, are distinguishable. T.J. argues that in contrast to the circumstances in these cases, Carrie did not inherit the property, it was not purchased with inherited money, and was it not property Carrie owned prior to the marriage and later jointly titled. Rather, the property was acquired during the marriage and titled directly from Mrs. Hansberger to both T.J. and Carrie as an inter vivos gift; therefore, according to T.J., it is marital property, and he is entitled to an equitable division of that property.
¶20. Carrie, on the other hand, asserts that the evidence supports the chancery court’s determination that the fifty-nine acres from her grandmother is her separate property and that under the cases relied upon by the chancery court, the mere fact that the property is jointly titled in both her and T.J.’s names does not, standing alone, convert the property to marital property subject to equitable distribution.
¶21. In addressing this issue, we acknowledge that “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994); see generally Deborah H. Bell, Bell on Mississippi Family Law § 6.03[1][a], at 139 (2d ed. 2011) (“Because of the presumption in favor of marital property, a spouse seeking separate classification bears the burden of proof.”). Although, as T.J. asserts, the record does contain the 2013 warranty deed from Mrs. Hansberger to both T.J. and Carrie obtained by them during their marriage, we find that the record also contains substantial, credible evidence supporting the chancery court’s determination that this property is attributable to Carrie’s separate estate.
¶22. In particular, although neither Mrs. Hansberger nor the attorney who prepared the deed testified at trial, Carrie testified that it was her grandmother’s intent that she (Carrie) have the property. [Fn omitted] Moreover, there was ample evidence presented at trial that Carrie legitimately feared for her safety and welfare if she did not have the land jointly titled, and thus she was essentially coerced into doing so. [Fn 9] Cf. Estate of Langston v. Williams, 57 So. 3d 618, 620-21 (¶10) (Miss. 2011) (describing the analogous concept of undue influence in the will context as using “undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent”); Bailey v. Estate of Kemp, 955 So. 2d 777, 783 (¶23) (Miss. 2007) (discussing the analogous concept of duress as requiring “(1) that the dominant party threatened to do something which he had no legal right to do; and (2) that the wrongful threat overrode the volition of the victim and caused him to enter an agreement against his free will”).
[Fn 9] As detailed in the statement of facts, Carrie testified that she was too afraid of T.J. to have title placed in her name alone. Regarding this fear, the record reflects that T.J. had attacked Carrie, punched numerous holes in the walls and doors in both their Tupelo and Senatobia homes, killed several of their dogs, and frequently threatened and verbally abused Carrie. As noted, the chancery court granted Carrie a divorce on the statutory ground of habitual cruel and inhuman treatment.
¶23. In short, there is substantial, credible evidence that the property was intended to be Carrie’s property and that her fear of T.J. prevented her from having it titled in her name. The chancery court therefore was correct in relying on McDonald, 115 So. 3d at 885-86 (¶¶12-14), in determining that “[t]he fact that the 59 acres was jointly titled [in this case] did not make it a marital asset.” See also Marter, 95 So. 3d at 737-38 (¶¶11-16); Delk, 41 So. 3d at 741-42 (¶17). The record reflects that the property was debt-free, the parties made no financial contribution toward the property or its maintenance during the marriage, and the parties did not use it. We find no manifest error in the chancery court’s determination on this issue, and we therefore find that T.J.’s first assignment of error is without merit.
Another HCIT Spousal Domestic Abuse Case
March 25, 2020 § Leave a comment
Yesterday we visited the 2017 amendment to MCA 93-5-1 that added “spousal domestic abuse” as a form of HCIT. In that case the chancellor had denied a divorce, finding that the proof was not sufficient.
In another case dealing with the 2017 amendment, the COA affirmed a chancellor’s finding that the evidence did support award if a divorce to the injured wife. The decision is in the case of Williams v. Williams, decided March 17, 2020. You can read Judge McCarty’s opinion for yourself.
I agree that the chancellor’s decision was supported by substantial evidence. I doubt any chancellor would have found differently. Most importantly, the chancellor specifically found the plaintiff-wife’s evidence credible. Remember, and this is vital, that the statute requires credible evidence. It’s crucial for the chancellor to make a finding of credibility so as to avoid the corroboration requirement. If your chancellor renders an opinion in a case with no corroboration, and has not made such a finding, file a timely R59 motion and ask that she do so.
Pleading the Spousal Domestic Abuse HCIT Ground
March 24, 2020 § Leave a comment
Ever since the legislature amended MCA 93-5-1 in 2017 to add “spousal domestic abuse” as a form of HCIT there has been a lingering question whether one is required to plead the enhanced ground, or whether it is sufficient simply to plead HCIT and nothing more. A recent MSSC decision comes close to answering the question.
Karrah Wangler filed her Complaint for Divorce against her husband Richard on January 3, 2018. On October 16, 2018, the day before trial, she moved the court to amend her complaint to track the 2017 amendment verbatim. The chancellor denied her motion. On appeal, she charged that the chancellor erred in denying her motion.
In Wangler v. Wangler, handed down March 12, 2020, the court affirmed. Justice Griffis wrote the 7-2 majority opinion:
¶6. “[M]otions for leave to amend are left to the sound discretion of the trial court. This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (internal quotation marks omitted) (quoting McCarty v. Kellum, 667 So. 2d 1277, 1283 (Miss. 1995)).
¶7.
[Mississippi] Rule [of Civil Procedure] 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded . . . if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be “freely given.”
Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002)).
¶8. Karrah argues that the chancellor should have granted her motion to amend the complaint because under Rule 15(a), “leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). This Court disagrees and finds that the amendment was futile. Alternatively, any error by the chancellor was harmless.
¶9. Mississippi Code Section 93-5-1 (Rev. 2018) provides twelve causes for divorce. Among those causes is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1. Effective July 1, 2017, the Legislature amended Section 93-5-1 to include “spousal domestic abuse” as a form of habitual cruel and inhuman treatment. S.B. 2680, Reg. Sess., 2017 Miss. Laws ch. 427, § 6 (codified as amended at Miss. Code Ann. § 93-5-1 (Rev. 2018)).
¶10. Karrah filed her complaint for divorce on January 3, 2018, and alleged that Richard was “guilty of habitual cruel and inhuman treatment.” More than nine months later, on October 16, 2018, Karrah moved to amend her complaint to allege spousal domestic abuse, specifically,
that Richard . . . ha[d] engaged in a pattern of behavior against [her] of threats of intimidation, emotional or verbal abuse, forced isolation, and false accusations of marital infidelity, coupled with episodes of abandoning [her] at all times of the day or the night on the sides of public highways and in public places which pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
According to Karrah, “[o]ut of an abundance of caution and so as to avoid any ‘surprises’ or misunderstandings, [she] . . . filed her motion to amend to explicitly and almost verbatim track the language of amended section 93-5-1 . . . .” Karrah explained that she moved to amend her complaint in order “to spell out the new . . . standard for habitual cruel and inhuman treatment . . . .”
¶11. But as previously noted, the legislative amendment to Section 93-5-1 was effective July 1, 2017, approximately six months before Karrah and Richard separated and Karrah filed her complaint for divorce. Thus, Karrah had ample time to include in her complaint any
allegation of spousal domestic abuse. Notwithstanding her failure to do so, the 2017 amendment to Section 93-5-1 was still applicable to Karrah’s complaint alleging habitual cruel and inhuman treatment. In other words, because Karrah filed for divorce on the ground
of habitual cruel and inhuman treatment after July 1, 2017, the effective date of the amendment, the amended language of Section 93-5-1 applied to her complaint. Additionally, the record shows that the parties participated in discovery and exchanged documentation
regarding Karrah’s allegations of spousal domestic abuse. Thus, Karrah’s last-minute motion to amend the complaint to “track the language of amended section 93-5-1” and to “spell out” the new standard was futile. Accordingly, the chancellor did not err by denying the motion.
¶12. Alternatively, even if the chancellor’s denial of Karrah’s motion to amend the complaint was erroneous, such error was harmless. The record shows, and Karrah admits, that “Karrah had already spelled out her evidence in her responses to discovery.” Moreover,
the record shows that Karrah testified at trial regarding her allegations of habitual cruel and inhuman treatment, including spousal domestic abuse. At the conclusion of Karrah’s case-in-chief, the chancellor granted her motion to amend the pleadings to conform to the evidence under Mississippi Rule of Civil Procedure 15(b). As a result, the chancellor considered all of the testimony and evidence offered by Karrah in support of her claim for divorce on the ground of habitual cruel and inhuman treatment, including spousal domestic abuse. Therefore, as acknowledged by Karrah, any error by the chancellor in denying the motion to amend the complaint was harmless.
Random thoughts:
- One of the key advantages of the 2017 amendment is to do away with the strict corroboration requirement. It replaces corroboration with a determination of credibility by the court. So the concern of practitioners has been over how much is necessary to be pled in order to preserve the no-corroboration advantage.
- This decision seems to say, without coming right out and saying it, that all you need to do is plead HCIT and the spousal abuse amendment is invoked.
- As a practice consideration, if I were you, I would plead both HCIT and HCIT/spousal abuse, and I would probably spell out as much of the offensive behavior as applies. Why? Well, it eliminates the argument that the other side was not put on notice, and if you don’t choose to invoke it at trial it is mere surplusage in the pleading.
- I did rule in the only case that has come before me with this issue that it was adequate to plead HCIT without the other language, but I still think that the better, most airtight way to approach it is to plead in detail.
If You Want it You Have to Ask for It
February 3, 2020 § 2 Comments
Back in the day, when I was a mere tadpole of a lawyer, chancellors had broad powers to effect equitable relief. At the end of every pleading were words to the effect: “And she prays for such other and general relief as this honorable court deems mete and right in the premises,” or simply “And she prays for general relief.” Those magic words often evoked unpled-for remedies fashioned by the judge to meet and resolve the problem presented by the evidence. Lawyers (called Solicitors back in those smoke-filled days of yore) foresaw that and were not surprised or blindsided by it. It was the way chancery court business was done.
The MRCP came along in 1982 and made chancery much more like law courts, and the fact that fewer and fewer appellate judges have much chancery experience has accelerated the process. General relief is now no more than a will-o-the-wisp.
That’s the hard lesson that Cheryl Burrell learned in the chancellor’s denial of alimony and use of the former marital residence in her divorce from her adulterous husband, Geoffrey. The lesson was driven home by the COA when it affirmed in Burrell v. Burrell, decided January 7, 2020. Judge Westbrooks wrote the opinion:
¶15. Geoffrey argues that because Cheryl never requested equal or disproportionate distribution of the marital estate, permanent alimony, or spousal support in her pleadings, the court could not grant the relief. Geoffrey, however, did plead for an equitable distribution of the marital estate, which the court granted. Geoffrey further argues that the court did not err in refusing to perform an Armstrong or Cheatham analysis because neither was necessary in light of Cheryl’s non-inclusive pleading.
¶16. In Moore v. Moore, 363 So. 2d 286, 287 (Miss. 1978), the Mississippi Supreme Court rejected Mrs. Moore’s argument for reversal of a chancellor’s decree that did not include an award for permanent alimony. The Supreme Court noted that although Mrs. Moore had been
granted temporary alimony, she had “made no averment pertaining to or prayer for permanent or temporary alimony.” Id. Citing Horton v. Horton, 269 So. 2d 347 (Miss. 1972), the Mississippi Supreme Court held that “the chancellor has considerable discretion in allowing or not allowing permanent alimony, and his beneficence in granting her temporary alimony not sought in her pleadings cannot be reversible error as to her.” Moore, 363 So. 2d at 287.
¶17. Like Mrs. Moore, the record before us does not reflect any request by Cheryl, ore tenus or written, for permanent alimony or spousal support. Even Cheryl’s own pleading for reconsideration does not list alimony or spousal support as one of the issues at trial. Notwithstanding the omission, the court did grant Cheryl temporary spousal support in its temporary order. However, as its name suggests, the court’s grant of spousal support was temporary and does not entitle Cheryl to continued support.
¶18. Cheryl never requested leave to amend her complaint to include a request for alimony or spousal support. No such leave was granted, and no amendment was ever made. Thus, Cheryl was not entitled to permanent alimony or spousal support. Accordingly, we find no error with the chancery court’s decision to deny reconsideration of the award to Cheryl.
A few points:
- If you don’t ask for it in your pleadings, you won’t get it unless you put on evidence to support that relief at trial without a sustained objection from the other side, and then follow up with a R15 motion to conform the pleadings to the proof.
- By asking for equitable distribution himself, Geoffrey opened that door to Cheryl because when the chancellor awards Geoffrey his portion something has to be done with what is left.
- So, what would happen if Geoffrey had asked for an award of alimony? Would that give Cheryl a vehicle to ride toward alimony for herself? No, alimony is a zero-sum game. The prayer for alimony is for the sole benefit of the pleader.
- Although Cheryl argued that she moved ore tenus at trial for alimony, there was nothing in the record to indicate that she had. Always be aware that the most important thing you can do at trial is to make a record. I have tried cases that I knew had no chance of success with a particular chancellor, but carefully loaded up my record to win on appeal.
- If you’re new at this, I urge you to create or steal some form divorce pleadings that ask for every conceivable form of relief: divorce; equitable distribution; alimony, lump-sum, periodic, and rehabilitative; custody; and so on. You can add or delete as necessary, but you will have everything you need as a starting point. Sometimes your client will say, “But I don’t want alimony; it will only make him mad.” You will answer, “If it’s in there we can always not pursue it or even take it out later, but if it’s not in there and you decide at trial that you want it, it may become impossible, so we’d better leave it in. Besides, we’re not in this to make him happy. We’re trying to see that you come through it okay.”
The Better Chancery Practice Blog 