The Extracurricular Trap

October 3, 2017 § 3 Comments

Divorcing parents often want to haggle over who will pay for Junior to participate in Youth Soccer Premier League, gymnastics, and all of the other manifold interests and activities that occupy nearly every waking hour of today’s children. When at last the lawyers have gotten their clients to agree, the lawyers without a lot of thought produce a provision like this for the PSA:

The parties agree that they will each pay one-half of the cost for Junior to participate in extracurricular activities.

That thorny issue settled, the lawyers then turn their attention to more substantial matters — like who will get custody of the cocker spaniel.

Now, we know that the parties above want Junior to participate in youth soccer and gymnastics, but is that what they agreed to in that language above?

Before we go on, remember that when you call upon the judge to interpret the parties’ agreement, she is bound by the language contained in its four corners. She may not receive parol evidence to understand what was intended unless she first finds that the language is ambiguous. The language above is heartbreakingly unambiguous. So the parties are stuck with its plain meaning.

And what is its plain meaning?

The COA answered that question in the case of Thomas v. Crews, 203 So.3d 701, 706-7 (Miss. App. 2016). In that case, the chancellor had been called upon to resolve a dispute between the parties over the meaning of the term “extracurricular activities.” Here is what the court said:

¶ 22. The chancellor’s clarification of the term “extracurricular” is also supported by substantial credible evidence in the record. The chancellor clarified that “extracurricular expenses are those incurred through school. … [S]chool volleyball is different than competitive volleyball [.] … [I]f the Father wants to pay, that will be up to the Father.” [Fn 2] At times, Thomas’s hearing testimony made the same distinction that the court’s order does, but, at other times, Thomas’s testimony equated school volleyball and competitive volleyball as “extracurricular.” This confusion justified the chancellor’s clarification.

¶ 23. When first discussing the volleyball teams, Thomas clearly made a distinction between school volleyball as extracurricular and competitive volleyball as different. Thomas referred to “school volleyball” as “the first real extracurricular activity that [Lunden] was interested in.” Thomas then testified that Lunden expressed an interest in competitive volleyball. Detailing Thomas and Crews’s decision to allow Lunden to play competitive volleyball, Thomas testified, “[Crews] and I talked about it and … we agreed that we would split the expenses of the—the training fee and uniforms.” Thomas also made this distinction between the two types of volleyball when discussing Lunden’s volleyball schedule. In contrast, Thomas, on cross-examination, referenced competitive volleyball as an extracurricular activity, stating that Lunden’s “extracurricular activities are expanding. So if she’s playing volleyball in Hot Springs, Arkansas, if you want to see her then that’s where we have to go.” In light of this testimony, the chancellor did not abuse his discretion when he simply “remind[ed] both parties that extracurricular expenses are those incurred through school.”

[Fn 2] Extracurricular is defined as “outside the normal curriculum.” Extracurricular, The Oxford English Dictionary (2d ed. 1989). Extracurricular activities “are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Extracurricular Activities, definitions.uslegal.com/e/extracurricular-activities/.

So, to return to our hapless parties, the shared expenses “are limited to those that are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Not exactly what they intended at the time. At the end of the day, one party leaves happy, the other mad.

If the parties intend to include certain activities, then spell them out. Don’t rely on a catch-all phrase that might have unintended consequences.

Forum Shopping in Divorce Cases

October 2, 2017 § Leave a comment

I posted here previously about the Lewis v. Pagel case, which changed the law of venue in divorce cases. It held that venue relates to personal jurisdiction, which can be waived or conferred voluntarily, rather than subject matter jurisdiction, which may not be waived or conferred voluntarily. The law up to Pagel had been that divorce venue conferred subject matter jurisdiction. Pre Pagel, if venue was wrong, the court was deprived of subject matter jurisdiction and any judgment it entered would be void.

In that same post I questioned whether Pagel would give rise to forum shopping. If personal jurisdiction can be waived, and venue is a function of personal jurisdiction, then venue should likewise be waivable.

How would that work? One example would be where two pro se litigants in Jasper County decide they can get an ID divorce quicker and easier in Jones County. So they file there. Or in a contested case the lawyers, after exhausting negotiations, mutually decide with their clients to file for divorce in Hinds County where their offices are, instead of in Simpson County where the parties live. Can or should the courts in Jones and Hinds entertain those actions?

Well, the language of MCA 93-5-11 has a lot to say about it:

“All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.

A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides.
Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.”

The operative verbs are must and shall, so the statute mandates where venue will lie. Pagel, on the other hand, says that venue only confers personal jurisdiction, which may always be waived.

So which controls? My best guess is that most chancellors will say that the statute controls, and a divorce filed contrary to the statute will be transferred to the proper venue. The right to waive personal jurisdiction would have to yield to the mandatory language of the statute.

But that’s just me. Your local experience may vary, and there are nine justices on the MSSC, as well as another ten on the COA, who could see it completely differently. Stay tuned.

Divorce is a Rule 4 Action

September 11, 2017 § 2 Comments

Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

A couple of commentors hit the nail on the head.

The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.

It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.

The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.

I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.

The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.

Rule 4 or Rule 81?

September 6, 2017 § 9 Comments

Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.

Can anyone tell me what is wrong with this statement from the opinion:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

I’ll revisit this next week.

Divorce Venue Can Be Waived

September 5, 2017 § 1 Comment

If there is one maxim of conventional wisdom in Mississippi divorce law, it is “Venue in a divorce is jurisdictional.” As a result, an objection to venue can not be waived.

That’s because the divorce venue statute, MCA 93-5-11, has been construed to confer subject matter jurisdiction which, as everyone knows, can neither be waived nor voluntarily conferred. The concept is embedded in our case law.

The foregoing was the law until June 1, 2017. Now the law has changed.

In Lewis v. Pagel, decided by the MSSC on June 1, 2017, Drake Lewis tried to argue on appeal that the chancery court lacked subject-matter jurisdiction over his divorce from Tonia Lewis Pagel because he was not a resident of the county where the divorce was filed. The Supreme Court rejected that argument, and turned its attention to the question whether Drake had waived what up until then had been unwaivable. Justice Chamberlin wrote for a unanimous court:

 ¶28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So. 2d 447, 451 (Miss. 1985).

¶29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of Civil Procedure provides:

(d) Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section 93-5-11 directly after its 2005 amendment.

¶30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So. 2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So. 2d 124,125 (1947) (applying Section 2738); Carter v. Carter, 278 So. 2d 394, 396 (Miss. 1973) (applying Section [93-5-11’s 1942 Code predecessor]) [Fn omitted] ; Miller v. Miller, 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So. 2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So. 2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).

¶31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. [Fn 3] Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. [My emphasis]

[Fn 3]  In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.

¶32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.

¶33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

¶35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the
dispute. [Fn omitted] Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.

So there you have it. Venue in a divorce case is no longer a function of subject matter jurisdiction that can not be waived or voluntarily conferred; it is a function of personal jurisdiction that can be waived. If venue is improper, the issue must be timely raised, and the remedy is transfer, not dismissal.

Remember that “timely” language from R 82. It does no good to plant a venue objection in your answer, and then to joust through discovery and motions for a year or two only to try to get the case transferred after the tide has been running against your client.

One little fillip, though. Won’t this open up the possibility of forum shopping? The plaintiff and defendant may decide to file in a district where neither resides because it has a shorter wait time to final hearing, or has a judge who is more to their liking, or for any other reason. A judge may invoke R 82 on her own motion at any time, but something has to bring the issue to the judge’s attention for that to happen. Or maybe we are simply entering an era when the locus of the divorce no longer has that much significance. Stay tuned.

A Ticking Time Bomb Post-Divorce?

August 15, 2017 § 4 Comments

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

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

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

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

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

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

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

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

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

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

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

Post-Publication Note:

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

Thanks to the commenters and Attorney Leonard Cobb.

Comments on Bankruptcy and Equitable Distribution

August 8, 2017 § 3 Comments

Yesterday I posted about the Powell bankruptcy case and how it addressed the handling of equitable distribution in divorce when there is a pending bankruptcy proceeding. As promised, here are my thoughts:

  • I have heard it said that Powell is a big change fraught with implications for family law practitioners, but I don’t see that. The language cited from Professor Bell clearly states what the law has been. Powell does not change that.
  • Some may have misinterpreted the federal domestic relations exception barring federal courts from exercising jurisdiction over divorce to mean that all matters incidental to a divorce are included. The US Supreme Court, however, has made it clear that it is the granting of the divorce itself that is barred. Any matters pertaining to the property of the bankruptcy debtor are subject to bankruptcy jurisdiction.
  • The only way that a chancellor may proceed in divorce after bankruptcy is filed is for you to lift the automatic stay. You have to petition the bankruptcy court to remand all of the issues, as Jessica Powell did, even knowing that some will not be remanded.
  • Only problem is, per Heigle, cited in the Powell opinion, our supreme court has made it clear that the chancery court should stay all proceedings before it until the bankruptcy is concluded.
  • Even without Heigle to stop you from going forward, it’s obvious that if the bankruptcy estate is taken away, equitable distribution is impossible. If equitable distribution is impossible, alimony is impossible, since you can’t get to alimony without going through equitable distribution. If most of the assets are in the bankruptcy estate, that may well limit or even eliminate child support.
  • As I mentioned yesterday, I am no bankruptcy expert, but it appears that if you represent the other spouse (not the debtor), you had better file a claim for him or her in bankruptcy court right away to protect that client’s rights. You need to ask a bankruptcy expert about this.

Bankruptcy and Equitable Distribution

August 7, 2017 § 1 Comment

I am no bankruptcy expert, and my experience with its intersection with a divorce action is minimal. My impression, though, is that most lawyers think that if a bankruptcy action and divorce action occur at the same time, all one has to do is to file a motion to remand the case back to chancery under the “domestic relations exception” to federal jurisdiction, which bars federal courts from issuing divorce, alimony, and child custody decrees, and the bankruptcy court will fling the case back to chancery, where it belongs.

That isn’t quite accurate, however, as a recent case illustrates. The case is In Re: Zelius Welborn Powell, III, Debtor; Powell v. Powell, no. 16-51982-KMS, adv. no. 17-06008-KMS, rendered June 30, 2017, in the U.S. Bankruptcy Court for the Southern District of Mississippi. I’ve included as much citation information as possible because I can’t find an non-subscription electronic site for a link. The case is available behind a paywall on Pacer.

The case began when Jessica Powell filed for divorce against her husband, Zelius Welborn Powell, III (Trey). While the divorce was pending, Trey filed for bankruptcy. Trey had sold some stock, and the chancellor ordered that the proceeds be held in a restricted account and “frozen.” Later the funds were turned over to the Bankruptcy Trustee.

Trey removed the entire divorce proceeding to bankruptcy court under Bankruptcy Rule 9027, and Jessica countered with a motion to remand the case to chancery court. Following an adversarial hearing, U.S. Bankruptcy Judge Katharine M. Samson had this to say about chancery jurisdiction in these cases:

… The Supreme Court has held that “the domestic relations exception [to federal jurisdiction] … divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) …

The domestic relations exception, however, does not divest this Court of all jurisdiction in this case. Federal courts “in which a case under [bankruptcy law] is commenced or pending shall have exclusive jurisdiction of all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate … .” 28 U.S.C. § 1334(e)(1) (2005). This exclusivity is not affected by a previously pending divorce action in Mississippi’s chancery courts.

When bankruptcy is filed after a divorce petition is filed but before the judgment of divorce, all assets titled in the name of the debtor spouse become a part of the bankruptcy estate. The state court action is stayed with respect to a property division. In Mississippi, a spouse has no property interest in marital assets titled in the other’s name until a judgment of divorce and equitable distribution. Under these circumstances, the nondebtor spouse becomes an unsecured creditor in the bankruptcy with regard to assets titled in the debtor’s name.

Deborah H. Bell, Bell on Miss. Family Law, § 21.06[2] (2d. ed.) (internal footnotes omitted).

. . .

To prevent confusion in this and future cases, the Court has gathered some Mississippi authorities concerning the jurisdiction and authority of a chancery court over property division when a bankruptcy case has been filed.

Family law and bankruptcy become most entangled when property division and bankruptcy coincide. A state court hearing a divorce action has the power to divide marital property equitably without regard to who holds title to the property. However, in Mississippi, a spouse has no interest in property owned by the other until a court judgment classifies the property as marital and orders a transfer of the property or a lump sum payment as part of equitable distribution … When bankruptcy and divorce occur simultaneously, marital property may include assets that are, or will become, property of the bankruptcy estate …

A state court may not classify and divide marital property without permission of the bankruptcy court. However, a spouse who files a divorce action seeking property division is asserting a claim against assets held by the debtor spouse and arguably at the moment of filing divorce becomes a creditor with an unliquidated claim against the estate. The spouse may file a claim in the bankruptcy and seek relief from the stay for the court to determine the she of assets to which he or she would be entitled outside of bankruptcy. Or, the state court may cho[o]se to proceed with the divorce and other aspects of the proceeding and reserve jurisdiction to divide the property after the bankruptcy has concluded.

Bell, supra, at § 21.03[3] (internal footnotes omitted.

The Mississippi Supreme Court has held that while a husband’s primary asset (a partnership) was in bankruptcy, the value of that asset was unknowable, and therefore the chancellor’s “decision to grant [the wife] a property settlement and/or lump sum alimony was premature … .” Heigle v. Heigle, 654 So.2d 895, 898 (Miss. 1995). The Mississippi Supreme Court has also held that other than the question of the divorce itself, which was undisputed, “all of the remaining issues should have remained in the trial court pending the conclusion of the bankruptcy proceedings.” Id; see also Dunaway v. Dunaway, 749 So.2d 1112, 1120-21 (Miss. Ct. App. 1999) (automatic stay of bankruptcy proceeding enjoins actions affecting bankruptcy assets).

The bankruptcy court granted Jessica’s motion in part, remanding the issues related to divorce, alimony, and child support to chancery, and denying it and retaining jurisdiction over issues involving assets of the bankruptcy estate.

That’s enough for now. I’ll comment tomorrow.

Revocation by Implication

July 25, 2017 § Leave a comment

May a will be revoked by a subsequent property settlement agreement in a divorce? That was an issue in the case of In the Matter of the Estate of Chaney: Chaney, et al. v. Chaney, decided May 16, 2017.

In June, 1962, James Chaney executed his last will and testament during a time when he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney. James and Lillian were divorced on May, 1969. In connection with the divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.”

In 1971, James married Josephine Chaney, and they moved to Mississippi where they lived until James’s death in 2011. They had no children.

In 2011, Lillian filed a petition to admit James’s 1962 will to probate in Mississippi, joined in by Alice. Josephine contested the validity of the will and moved to transfer the Crockett County farmland out of the estate. The chancellor found that the will was revoked by implication, and Lillian appealed.

The COA affirmed. Judge Griffis wrote for a unanimous court:

¶14. Lillian and Alice … argue that the chancellor erred when he found that James’s will was revoked by implication. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.

¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” Miss. Code Ann. § 91-5-3 (Rev. 2013). In Rasco [v. Estate of Rasco, 501 So.2d 421 (Miss. 1987)], the supreme court recognized that a will may be revoked by various circumstances, not specified within the statute. Rasco, 501 So. 2d at 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a pre divorce will and a subsequent property-settlement agreement are in conflict. Hinders[v. Hinders,] 828 So. 2d at 1235 (¶1) [Miss. 2002]. Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So. 2d at 423.

¶16. When presented with this issue, a chancellor should “question . . . whether the testator intended . . . [the] settlement [to] operate as . . . an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further,“[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[G]enerally a divorce accompanied by a property settlement agreement[,] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).

¶17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So. 2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.

¶18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predivorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.

¶19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.

¶20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property settlement agreement speaks for itself, and James’s intentions are clear.

¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the parties severed ties many years before this action.

¶22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So. 2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So. 2d at 1240 (¶15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.

¶23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.

Do not assume, and never let your clients assume, that a divorce, whether agreed or contested, will operate to revoke a will. As Hinders and Rasco both clearly state, there must be a specific, clear intent on the part of the testator to revoke. Here, the intent was clear, and Lillian’s agreement to forfeit her interest sealed the deal. Suppose, though, that the PSA had only included some of that standard language to the effect that what’s titled in her name is hers, and what’s titled in his name is his. Would that have been enough to revoke the will? I think not.

A previous post talking about advising your clients in the aftermath of divorce is here.

Making the Judge’s Job Easier: The Asset Table

July 19, 2017 § 4 Comments

The easier you make it for the judge to rule in your favor, the more likely it is that she will. That’s a thought I have expressed here many times.

When it comes to equitable distribution, think about how it’s usually done. On day one at 9:46, you ask your client about the living room furniture: its value, age, condition, whether it’s marital or not. Then, at 10:18, you return to the assets after a foray into some HCIT testimony. Ten minutes is devoted to an IRA and the couple’s vehicles. Then some custody testimony. At 11:38, you start questioning about a PERS account. Lunch break. After lunch, more PERS followed by a venture into more HCIT. At 2:09, more testimony about the furniture. Then back to HCIT. Day two is pretty much the same. After everyone has rested, the judge then has to dig through notes to ferret out the evidence on assets so as to make a ruling on equitable distribution. Don’t be surprised if the judge misses something. Oh, and if you happen to interrupt her while she is working on that opinion, don’t be surprised if she is in a foul humor.

It doesn’t have to be that way.

Before you go to trial, why not make an asset table? It should have six columns: (1) a number assigned serially to each item to facilitate questioning; (2) a description of the asset (e.g., “Red couch – Living room” or “Apache Industries 401(k) account no. AFP0875-401-CX” or “2015 blue Ford F-150 pickup”; (3) Designation as marital or non-marital; (4) fair market value; (5) Debt associated with the item; (6) Whether Husband (H) or Wife (W) should receive the item. Some people use a spreadsheet to do this; others use a table in a word processing program. When you come up with a template for it, you can use it time and again.

Once you have had the asset list properly identified and introduced, you can question your client from the table. It eases the work of the chancellor considerably, and will go a long way toward giving the judge the impression that you know what you’re doing.

In this district, we require counsel for both parties to come up with a consolidated asset table. You can’t get a trial date in my court until you do, when equitable distribution or alimony is an issue. This requires the parties to agree to what the assets are, but they can disagree as to values, whether the asset is marital or not, and who should receive the item. The obvious virtue of this approach is that the judge does not have to figure out whether the wife’s testimony about the “green chair” was referring to the “chair in the living room” testified to by husband.

We have had few problems getting counsel to cooperate to come up with the list. When a client drag his feet, the judge’s suggestion that he will simply use the more diligent party’s list usually gets cooperation.

Don’t forget to provide your asset list in discovery if that information is requested. You don’t want to be stopped at trial by failure to provide it in discovery.

Remember, too, that although a client may give his or her opinion as to values, some values are best proven otherwise. A residence, for example, should have an appraisal, unless the parties agree to the value. The value of financial assets should reflect the most recent statements. If you want the judge’s ruling to be as accurate as possible, you should provide as accurate as possible information.

The asset table may be appended to an 8.05, or it may be referenced in the appropriate place in the financial statement.

This may seem like extra work, but you will be gratified at how much easier it makes your trial work, and how much clearer and effective your case for equitable distribution will be.

Where Am I?

You are currently browsing the Divorce category at The Better Chancery Practice Blog.