PSA No-No’s

March 12, 2019 § Leave a comment

Just because your client agrees with her estranged husband to certain terms for settlement of their divorce does not mean that you should plug those terms into a PSA and shove it under the judge’s nose for approval along with a divorce judgment. Our appellate courts have held that some provisions are void and unenforceable as contrary to public policy. Here are the most notable:

  • A provision that relocation of the custodial parent would automatically trigger a change of custody without court action is void because it deprives the chancery court of jurisdiction to modify its judgment. McManus v. Howard, 569 So.2d 1213, 1216 (Miss. 1990).
  • Likewise, an agreement that the custodial parent may not relocate without prior court approval is void. Bell v. Bell, 572 So.2d 841, 845-46 (Miss. 1990).
  • The parties may not agree that child support terminates when the child turns 18. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991).
  • A post-nuptial agreement that the father would automatically have custody of the parties’ child in the event of a separation was held to be unenforceable. McKee v. Flynt, 630 So.2d 44, 50 (Miss. 1993).
  • A mother’s agreement to forego child support in return for a deed to some property was void as against public policy. Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986).
  • The parties’ agreement that the mother would pay no child support if she agreed to transfer custody to the father is unenforceable. R.K. v. J.K., 946 So.2d 764, 779-80 (Miss. 2007).

It should go without saying that the chancellor, before approving the agreement, must find that it makes adequate provision for the support and custody of the child(ren). MCA § 93-5-2(2). The court reversed in a case where the mother agreed to no visitation whatsoever and to a provision that her payment of child support was in an amount she could not afford. Lowrey v. Lowrey, 919 So.2d 1112, 1119 (Miss. 2005).

An agreement for no child support should be approved only in the most exceptional circumstances, such as unemployment. Brawdy v. Howell, 841 So.2d 1175, 1179 (Miss. App. 2003).

It is against public policy for the parties to present one agreement to the court for approval while having a secret agreement that they would not abide by its terms. Wilburn v. Wilburn, 991 So.2d 1185, 1193 (Miss. 2008). I set aside a divorce judgment on its first anniversary after I was presented proof in court that the parties had exchanged emails in the course of settlement negotiations that the husband promised he would not enforce the wife’s obligation to pay certain debts under the agreement if she would agree that he did not have to pay the child support provided for. Oh, and the agreement for her to pay certain debts was only in the agreement to help her qualify for a low-income mortgage.

Keep in mind that our appellate courts have been reversing cases in which the paying party was ordered to maintain life insurance in a benefit amount in excess of the total obligation. In one case, the trial court ordered the ex-husband to maintain a $1,000,000 life insurance policy to secure a $480,000 lump sum alimony award. The COA reversed, holding that the amount of life insurance may only be enough to secure the award. Griner v. Griner, 235 So.3d 177, 188-89 (Miss. App. 2017). Your PSA’s should follow that line of reasoning or reflect some other justification for the agreed amount.

 

 

Another Divorce Misfire in an HCIT/Constructive Desertion Case

January 28, 2019 § Leave a comment

Brooke Hoffman charged her husband Michael with habitual cruel and inhuman treatment and constructive desertion. After hearing the evidence, the chancellor dismissed her complaint, finding that she had proved neither ground. Brooke appealed the denial of the divorce.

The COA affirmed in Hoffman v. Hoffman, decided October 23, 2018, with Judge Wilson writing for a unanimous court:

¶22. As discussed above, Brooke alleged that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and constructive desertion. As a practical matter, there is little difference between these two grounds. “In effect, conduct that would qualify as habitual, cruel, and inhuman treatment becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Deborah H. Bell, Mississippi Family Law § 4.02[5][d], at 80 (2d ed. 2011).

¶23. “Habitual cruel and inhuman treatment is conduct that either: (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to render the marriage revolting to the non-offending spouse, making it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.” Farris v. Farris, 202 So. 3d 223, 231 (¶29) (Miss. Ct. App. 2016) (quotation marks omitted) (quoting Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012)). “To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶13) (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.

¶24. Similarly, “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.” Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949). “Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases.” Hoskins v. Hoskins, 21 So. 3d 705, 710 (¶20) (Miss. Ct. App. 2009). The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).

¶25. We affirm the chancery court’s judgment that Brooke failed to prove grounds for divorce. The chancery court noted that Brooke alleged only one incident of physical violence, which Mike denied. The court then noted that Brooke’s single allegation of violence was undermined by a police officer’s observation that she exhibited no signs of physical abuse immediately after the alleged injury. The court also noted that the day
following the alleged abuse Brooke wrote in a diary “that the parties made love and that she could ‘really tell that he (Mike) was emotionally present.’”

¶26. The chancery court also found that Brooke’s allegations related to Mike’s relationship with Matt were not credible. Mike denied Brooke’s allegations and another witness corroborated his testimony. Furthermore, the court found that Brooke offered “no proof” of an actual affair or physical relationship.

¶27. “It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact.” Johnson v. Black, 469 So. 2d 88, 90 (Miss. 1985). “The chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Darnell v. Darnell, 234 So. 3d 421, 423-24 (¶8) (Miss. 2017) (quotation marks omitted). “This Court gives deference to a chancellor’s findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses’ testimony and the parties’ behavior.” McNeese v. McNeese, 119 So. 3d 264, 275 (¶32) (Miss. 2013) (quotation marks omitted). Applying our familiar standard of review, we cannot say that the chancery court clearly erred in finding that Brooke’s allegations were not credible.

¶28. The same is true of the chancery court’s finding that Brooke’s allegations of emotional abuse were “unpersuasive.” The court noted that Brooke only testified to “a discreet number of unpersuasive specific incidents.” And, again, Mike denied Brooke’s allegations that he was emotionally abusive. It is for the chancellor “alone” to “judge[ ] the credibility of the witnesses” and weigh any “conflicting evidence.” Irle v. Foster, 175 So. 3d 1232, 1237 (¶32) (Miss. 2015). This Court does not reweigh conflicting evidence on such issues of fact. Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017).

¶29. Suffice it to say there was conflicting evidence with respect to each of Brooke’s various allegations against Mike. Those conflicts represent issues of fact for the chancery court to decide. Id. The chancery court summarized its reasons for dismissing Brooke’s complaint for divorce as follows:

Brooke may very well have determined for herself that she is no longer willing to countenance the ways in which she and Mike seem no longer to get along, especially when considered from the perspective of another man’s arms with whom she may now seem more compatible. However, . . . for a divorce to be granted on the ground of habitual cruel and inhuman treatment there must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility . . . .

. . . .

The theory of constructive desertion as a grounds for divorce is reserved for extreme cases. Although Brooke’s and Mike’s marriage might reasonably be characterized on the record made as unhappy and unfulfilling, the evidence does not support a finding that it is to be considered unendurable to Brooke.

. . . .

The [c]ourt takes no pleasure in declining to award relief in a circumstance where the parties are separated and one party professes to be so
unhappy as to seek to be officially unshackled from the bonds of matrimony. The [L]egislature, as the policy makers for this [S]tate, have consistently declined to amend the divorce statutes to provide that one party can obtain a divorce from the other spouse without a showing of fault. Our appellate courts have not expanded the definition of cruel and inhuman treatment to include circumstances which would otherwise comprise mere incompatibility. The [c]ourt is, therefore, constrained by the evidence presented to it and the record made, and cannot find that Brooke’s and Mike’s marriage was unendurable at the time that Brooke left. Thus, the [c]ourt cannot find that Mike is guilty of constructive desertion.

We find no clear error, legal error, or abuse of discretion in the chancery court’s findings and conclusions. Therefore, we affirm the judgment of the chancery court dismissing Brooke’s complaint for a divorce.

Some observations:

  • The inescapable object lesson here is one most practitioners have come to appreciate over the years: HCIT is not an easy ground with which to obtain a divorce, even though the burden of proof is only a preponderance of the evidence.
  • In ¶24, dealing with constructive desertion, the court says, citing Hoskins, that “The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).” That can at least be misleading. Hoskins does not say that; when Hoskins mentions burden of proof, it is referring to HCIT. Indeed, the only ground for divorce with a preponderance burden of proof is HCIT. The other grounds require clear and convincing evidence. See, Bell, 2d Ed., § 4.02[1][b]. Bell does say that, “In effect, conduct that would qualify as [HCIT] becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Id., §4.02[5][d]. So I guess it could be argued that the HCIT burden of proof applies in constructive desertion cases, but I am not aware of any cases that say that directly.

Separate Summons for Contempt in a Divorce Case

January 8, 2019 § Leave a comment

Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error

It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?

Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:

¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.

Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.

Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:

¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.

¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.

¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.

¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).

¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.

Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.

But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.

Playing Cat and Mouse Games Can Cost

January 2, 2019 § Leave a comment

Most chancellors get testy when a party plays coy with financial information that is needed to decide a case. It usually happens in discovery where a party with financial assets gets vague with requests for information about account balances and the like. A recent case illustrates how that kind of tactic can cost a party dearly.

Julia and Steven Dauenhauer consented to a divorce on the ground of irreconcilable differences and left it to the chancellor to distribute the marital estate. Julia had some retirement accounts, but in discovery she did not produce statements and at trial she did not list all of them and their values on her 8.05. When the chancellor included them in the marital estate, Julia first filed a motion to “reconsider,” which was treated as a R60 motion because it was filed later than ten days after entry of the judgment. When she proved to be unsuccessful in that endeavor, she appealed claiming the accounts  were separate property.

In the case of Dauenhauer v. Dauenhauer, decided November 13, 2018, the COA affirmed the chancellor’s ruling on the point. Judge Carlton wrote the unanimous opinion:

¶36. Julia next argues that the chancellor erred in classifying the following as marital property: (1) the money she withdrew from her PERS retirement account and (2) the contributions she made to her Empower 401K after the entry of the order for separate maintenance.

¶37. This Court employs a limited standard when reviewing a chancellor’s division and distribution of property in a divorce. Phillips v. Phillips, 904 So. 2d 999, 1001 (¶8) (Miss. 2004). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. Upon review, we examine the chancellor’s application of the Ferguson factors. Id. In so doing, we do not conduct a new Ferguson analysis; rather, we “review[ ] the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Id.

¶38. Furthermore, “the party arguing to classify an asset as nonmarital property has the burden to demonstrate to the court the asset’s nonmarital character.” Wheat v. Wheat, 37 So. 3d 632, 640 (¶26) (Miss. 2010). The supreme court explained that meeting this burden requires going “beyond a mere demonstration that the asset was acquired prior to marriage.” Id. [My emphasis]

¶39. Julia explains that the $56,484.90 “withdrawals from retirement” listed in the Schedule of Marital Assets represents a PERS retirement account in the amount of $46,732.68 and a Great-West Retirement Services account in the amount of $9,752.22. In his judgment, the chancellor included a footnote explaining that the “total of the funds Julia withdrew from her retirement accounts is also a marital asset subject to equitable distribution.” However, Julia argues that she testified at trial that her PERS retirement was “originally acquired when [she] was divorced” from Steven the first time. Julia admitted at trial that contributions to the account had been made during their second marriage, but she now maintains that a portion of the total value of her PERS retirement account should be considered separate property.

¶40. At trial, the record shows that during cross examination, Steven’s attorney questioned Julia about whether she provided a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Julia responded that she was not requested to produce such a document. Steven’s attorney responded, “Well, ma’am, I definitely requested it in request of production documents, and you didn’t produce them, and I’m going to go through that.” The record shows that on her Rule 8.05 financial declaration, Julia attached a W-2 form indicating the value of the PERS account amounted to $46,732.68 when she cashed it out in 2015.

¶41. Regarding the $17,000 in her Empower 401K account, Julia asserts that the majority of the value of the Empower account constituted separate property. The chancellor’s judgment reflects that he divided the assets in the Empower account equally between the parties. In so doing, the chancellor also provided that “Julia voluntarily contributes approximately twenty percent of her income from West Jefferson [Medical Center] to her 401K retirement account.” Julia asserts that the three trial exhibits, including two of her pay stubs from April 2016, which the chancellor referenced as support for that amount, do not reflect contributions of twenty percent. Rather, Julia argues that her April 2016 pay stubs show that she only contributed fifteen percent of her monthly income to the account. Julia further submits that her contributions made to the account after the order for separate maintenance should be classified as separate property.

¶42. Steven argues, however, that Julia failed to produce a statement for the Empower account, despite being requested to do so in discovery. The trial testimony reflects that Steven’s attorney asked Julia if she had a pension plan. Julia responded, “Yes, I do.” Steven’s attorney asked, “But you didn’t put it on [your Rule 8.05 financial statement]?” Julia answered, “Correct.” Julia testified, however, that she started accumulating funds in
her Empower account in 2014.

¶43. Our review shows that the chancellor set forth the following findings with regard to Julia’s retirement account and Empower account:

Julia voluntarily contributes approximately twenty percent of her income from West Jefferson to her 401K retirement account.

. . . .

Prior to the separation, Julia purchased a home located at 209 Blue Heron Cove, Waveland, MS 39567, as well as a 2015 Mazda. When Julia purchased this home, she used $9,752.22 of her retirement funds from West Jefferson Medical Center to pay off the loan for the Honda Ridgeline. (See Exhibit 14, Page 10). Julia testified that she cashed in additional retirement savings in the amount of $46,732.68 and used these funds to purchase various items and appliances for her new home. (See Exhibit 14, page 8). Through post trial submissions, Julia has detailed how she spent $43,855.23 or this withdrawal.

¶44. The chancellor then performed a Ferguson analysis and found that “no non-marital property” existed. Under the factor of “the income and earning capacity of each party,” the chancellor made the following determination regarding Julia’s retirement accounts:

Both Steven and Julia have advanced degrees and therefore an ability to earn. However, because Steven has stated the desire to return to school to earn a teaching license, and Julia is currently working as a nurse practitioner, Julia’s current earning capacity is much higher than Steven’s. Julia also has the income and funds available to voluntarily contribute twenty percent (20%) of her income from West Jefferson to her retirement. This contribution is significantly more than required, and a much greater than Steven is saving towards his retirement through his PERS account.

¶45. Next, the chancellor set forth a schedule distributing the marital assets. Under Julia’s assets, the chancellor listed the $56,484.90 from the withdrawals from retirement as well as $8,500, which constituted one-half of her Empower account. The chancellor awarded Steven one-half of Julia’s Empower account, amounting to $8,500.

¶46. As stated, Julia bore the “the burden to demonstrate to the court [an] asset’s nonmarital character[,]” which requires going “beyond a mere demonstration that the asset was acquired prior to marriage.” Wheat, 37 So. 3d at 640 (¶26). Julia admitted that she did not produce a statement for her Empower account in discovery, nor did she produce a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Therefore we cannot say that the chancellor abused his discretion in classifying as marital property the money Julia withdrew from her PERS retirement account and the contributions she made to her Empower 401K after the entry of the order for separate maintenance.

So when you leave it up to the judge to make her best guess about the information you didn’t make clear in the record, you get what you get. If that gap in the record comes about from a cat-and-mouse strategy of non-disclosure, it can bite your client in a most sensitive and painful part of the anatomy.

Waiving a Motion by Inaction

December 5, 2018 § 1 Comment

When Christina and Billy Leblanc appeared for their divorce trial, also at issue was a contempt action that Christina had filed complaining that Billy had failed to pay the mortgage on the former marital residence as directed by the court in a temporary order. On the first day of trial Billy admitted in his testimony that he had not paid it as ordered.

On the second day of trial, however, the parties agreed to a consent to divorce that did not mention the contempt. The chancellor did not include an adjudication of contempt, and Christina appealed alleging several errors, including the non-adjudication of contempt. She contended that the chancellor should have awarded her a separate judgment for the mortgage arrearage.

In Leblanc v. Leblanc, decided October 23, 2018, the COA affirmed on this issue. Judge Wilson wrote for the unanimous court (Irving not participating):

¶69. As discussed above, the chancery court twice ordered Billy to pay the arrearage on the mortgage on the marital home, and Christina filed two contempt motions based on Billy’s failure to do so. Her second motion was still pending when trial began. On the first day of trial, Billy admitted that the mortgage was not current. He claimed that he was unable to pay it. Then, at the beginning of the second day of trial, the parties consented to an irreconcilable differences divorce. The chancery court’s final judgment awarded Christina the marital home, along with the mortgage. However, the court’s judgment did not specifically address Billy’s prior contempt or the arrearage. On appeal, Christina argues that the chancery court erred by not finding Billy in contempt and by not entering a separate judgment in her favor for the mortgage arrearage.

¶70. We conclude that the issue of Billy’s contempt was waived because the parties did not list contempt among the issues to be decided by the court. In an irreconcilable differences divorce, the issues that are to be decided by the court by the consent of the parties must be “specifically set forth.” See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). “The language of section 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Myrick v. Myrick, 186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2016) (quoting Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005)) (brackets omitted). Here, the parties agreed that the chancellor would decide issues related to child custody and support, equitable division, alimony, and insurance. Contempt was not mentioned when they consented to an irreconcilable differences divorce. Therefore, we hold that the issue was waived.

¶71. In addition, our general “rule is that a party making a motion must follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.” Anderson v. McRae’s Inc., 931 So. 2d 674, 678 (¶10) (Miss. Ct. App. 2006) (emphasis added; quotation marks omitted). Here, Christina noticed her motion for a hearing on the first day of trial and mentioned the motion at the outset of trial; however, she did not request a ruling on the motion when she subsequently consented to an irreconcilable differences divorce, or at any time thereafter. Therefore, there is no “ruling from the [chancery] court” for this Court to review. Id. Accordingly, we conclude that Christina waived the issue by failing to obtain a ruling.

Okay, I get it that the issue was waived as a contested issue at this trial and for this appeal, but does that mean that Christina can’t ever recover what Billy didn’t pay? Does it mean that she permanently waived collection? Well, here is what Professor Bell said:

“The obligation to pay past-due temporary support survives a final judgment, even though the temporary support is replaced by a permanent support order. A payor was properly held in contempt for failure to make temporary child support, alimony, and mortgage payments totaling $2,900.” [Citing Langdon v. Langdon, 854 So. 2d 485, 496 (Miss. App. 2003). Also citing Baier v. Baier, 897 So. 2d 202, 205 (Miss. App. 2005) for the proposition that temporary arrearages may not be forgiven]. Bell on Mississippi Family Law, 2d Ed., § 14.02[3].

So it would appear that Christina may get another bite at that crabapple.

I see pleadings raising all sorts of issues and defenses, and motions filed along the way, that are never called up before the court for hearing. You need to heed the court’s warning that failure to bring those up for the court to address will waive them so that they can’t be raised on appeal.

A Familiar Ring

November 19, 2018 § 2 Comments

An endearing and prevalent romantic custom is to bestow a ring on one’s sweetheart. Quite often the ring is an emblem of engagement in the expectation of marriage. When the expectation is not realized, the gift is said to be conditional and remains the property of the donor, as in the Cooley case, which we discussed at this link. When the expectation does ripen into marriage, the ring is a gift to the donee as in the Lomax and Neville cases, which we discussed here.

A recent case presents a scenario somewhere between those two.

During the time that Dr. Christopher Cummins was separated from his wife, he became romantically involved with one of his employees, Leah Jordan (later Goolsby). Although Cummins had not divorced his wife, and never did at any time relevant to this case, he and Jordan began living together, and even became engaged, which Cummins memorialized with a gift of rings. Later, Jordan broke off the engagement and kept the rings. After Jordan filed a paternity suit against him, Cummins counterclaimed for the rings that he claimed were worth $11,435. He asked the court to order that the rings be returned, or that he have a credit for their value against court-ordered child support. He argued Cooley — that the conditional gift was never completed by marriage, and so had to be returned to the donor.

The chancellor ruled that the rings were a completed inter vivos gift because Cummins had never divorced his wife, rendering the condition impossible due to the fact that he could not legally marry Jordan. Cummins appealed.

In Cummins v. Goolsby, decided October 18, 2018, the MSSC affirmed. Justice Maxwell wrote the opinion for a unanimous court (Justice Coleman specially concurring):

¶9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.’” Cooley, 200 So. 3d at 476 (quoting Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982)). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties’ getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley. He claims the third element of a completed inter vivos gift—that the gift was complete and nothing was left to be done—had not been met. So, he was entitled to the return of the rings.

¶10. But this case is not like Cooley.

¶11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternityand to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child’s father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds, 935 So. 2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell, 579 So. 2d 543, 549 (Miss. 1991)). So, even if Dr. Cummins had a right to the rings or to the rings’ value, by no means is he entitled to the ultimate remedy he seeks — a reduction in child support based on the broken engagement.

¶12. Second, and more importantly, unlike the boyfriend in Cooley, Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins’s marriage is significant because he conditioned his gift on something he legally could not do—marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition — or the failure thereof — is what entitles him to the rings.

¶13. “[O]ne of the maxims of equity is, ‘He who comes into equity must come with clean hands.’” Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g., Morgan v. Wright, 133 S.E.2d 341, 343 (Ga. 1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman, 76 A.D.3d 178, 184 (N.Y. App. Div. 2010) (“[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.”).

¶14. Because, unlike the boyfriend in Cooley, Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor’s judgment.

Justice Coleman’s specially concurring opinion, joined in part by Beam, Ishee, and Randolph, points out that the law of promise to marry in Mississippi is governed by contract law, rather than by the law of gifts. It’s worth a read.

A few points:

  • With this decision, we now have law covering the most common ring-gift situations: (1) the uncompleted gift conditioned on marriage, Cooley; (2) the gift completed by marriage, Lomax and Neville; and (3) the gift that was intended originally to be conditional, but cannot be completed due to impossibility, Cummins.
  • Kudos to the court for invoking the maxims of equity.
  • If you’re going to take up with someone else while separated from your spouse, for Pete’s sake don’t get engaged, and by all means don’t get carried away with engagement rings.

Further on the Tax Treatment of Alimony

October 31, 2018 § Leave a comment

A couple of days ago I posted about the big change in tax treatment of alimony coming after December 31, 2018.

Here are some points brought to my attention that correct and fine-tune that post:

  • I said that there must be a judgment pre-dating the demarcation date. Other tax experts believe that a binding agreement for alimony to be treated for taxes as it currently exists will satisfy the law. The key is that the agreement must on its face be binding. To me that means either a PSA or a consent with alimony as an agreed issue presented to the court for approval or some other proceeding to make it binding.
  • I also said that modification would result in making the pre-demarcation-date-alimony non-deductible and non-taxable. A more accurate statement is that modification may, in some cases, change the tax treatment. It’s too complicated for me to elaborate on here, but you need to get some competent guidance before jumping into any alimony modification post December 31, 2018.

Those are the tweaks. Here are two of my own observations:

  • Don’t expect judges to be familiar with all of the nuances of these changes. Be prepared to offer expert testimony or stipulations that cover these points.
  • Get some competent tax advice so that you can properly and accurately advise your clients. That disclaimer in your retainer agreements and PSA’s about tax advice does not relieve you of the obligation to be able to advise your clients about basics such as tax treatment of alimony and the pitfalls of modification because that’s not really tax advice — it’s divorce advice.

Thanks to the lawyer who called this to my attention.

Tax Treatment of Alimony is Changing Soon

October 29, 2018 § 2 Comments

Effective after December 31, 2018, alimony will no longer be deductible by the payor, and will no longer be income to the payee. That’s per the “Tax Cuts and Jobs Act” passed by Congress earlier this year.

The law refers to “divorce agreements executed” after December 31, 2018, which would seem to indicate that if you have a PSA executed by the parties on December 29, 2018, the payments would maintain their deductible/income character, but at least one tax expert whom I asked said that the law requires a judgment or decree either adjudicating alimony as a contested issue or incorporating an agreement.

Also, any judgment modifying alimony after the cutoff date will cause the alimony to lose its deductible/income character.

So here are some ramifications for Mississippi practitioners:

  • If you’ve been dragging out that divorce case and the current alimony treatment is important to your client, you’d better get moving; you’ve only got two months left until the change.
  • You need to think twice about modification, especially if you represent the payor. Even a slight modification of alimony after the cutoff date will cause it no longer to be deductible.
  • The parties will no longer be able to agree to deductibility or non-deductibility, or taxability or non-taxability. All alimony is non-deductible and non-taxable, no matter what the parties agree.
  • It will no longer make any sense to craft hybrid alimony provisions because taxability is no longer a factor.
  • The court is required to consider the tax consequences under the Armstrong factors. Keep that in mind as you prepare your witness list. You might want to prepare a stipulation for the court as to taxability of alimony.
  • I think this will: (a) make alimony more difficult to negotiate, and (b) have a depressing effect on amounts of alimony awarded and agreed.
  • I believe this also applies to separate maintenance, but that’s my opinion.

It’s not too soon to sit down with a tax specialist who can advise you of the consequences of this change. This has drastic strategic consequences for divorce lawyers and their clients.

 

The Proper Way to Record a Contest to an ID Divorce

October 17, 2018 § 2 Comments

A couple of days ago we visited the COA’s handling of the Arrington v. Arrington case dealing with the necessity to file a judgment with the clerk in order for it to take effect. [Note: The post on Arrington was moved to next month]

There’s an interesting wrinkle in that case having to do with how to make a record of an objection to the irreconcilable differences divorce.

As the COA said in ¶3: “On August 23, 2013, through an attorney, Harold filed a withdrawal of consent to the joint claim for divorce.” Only thing is, there was no Consent as that term is used in the statute. There was merely a joint complaint for divorce. Here’s how Judge Griffis’s opinion addressed it:

¶16. Now, we must determine whether Harold withdrew his consent to the joint complaint for divorce in a timely manner.

¶17. We note that section 93-5-2(3) provides:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without
leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto . . . .

(Emphasis added). However, this section applies only when the parties agree to an irreconcilable-differences divorce but are unable to agree upon adequate and sufficient provisions for custody or property rights and consent to allow the court to decide these specific disputed issues. Id.

¶18. Here, the parties agreed to an irreconcilable-differences divorce and incorporated an agreed-upon property settlement. They did not invoke section 93-5-2(3), and there were no issues upon which the parties did not agree. We also find no authority to expand this restriction on the withdrawal of consent outside of section 93-5-2(3). We therefore find that the consent restriction in section 93-5-2(3) does not apply here. Harold was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce.

In other words, what Harold should have done is simply file something to put the case on a contested footing. He could have filed an answer denying the complaint and withdrawing his joinder in that pleading. Or he could have, as I have often seen, filed an objection to a divorce on the ground of irreconcilable differences. By filing a pleading purporting to withdraw consent to the divorce he somewhat confused the issue since there was no consent per MCA 93-5-2(3) that could be withdrawn.

Another point you can take away is that a § 93-5-2 consent may not be withdrawn after the court has commenced any proceeding “pertaining thereto,” including the hearing of any motion or other matter. In a case of waffling clients, I have seen lawyers file a motion with the Consent asking the court to approve and accept it in advance of a full trial on the contested issues, the goal being to eliminate withdrawal or at least to make withdrawal subject to court approval.

Death and the Divorce Judgment

October 16, 2018 § Leave a comment

We’ve talked about the necessity of filing a judgment with the clerk as required in MRCP 58 and 79(a). It seems to be a fairly ironclad rule.

But there is at least one post-MRCP case in which no judgment was entered following trial, one of the parties died, and the MSSC upheld the chancellor’s nunc pro tunc entry of a divorce for a pre-death date.

Johnnie and Luke White underwent their fourth divorce from each other in 1992. In the course of the trial they agreed to a consent to divorce on the ground of irreconcilable differences that was handwritten, signed by each of them, and filed with the clerk. Following the trial, the chancellor ruled from the bench on the contested issues, directed that the parties be divorced, and ordered Luke’s attorney to draft a judgment. Following the trial, and before the judgment could be entered, Luke died.

Luke’s brother filed a R25 Suggestion of Death and asked to be substituted as a party for the sole purpose of entering a judgment. After hearing both sides the chancellor executed a judgment dating it nunc pro tunc to the date when he had ruled on the contested issues. Johnnie appealed. In the case of White v. Smith, 643 So.2d 875 (Miss. 1994), the MSSC affirmed. (Note that Smith was the administratrix of Luke’s estate, and she was substituted for Luke’s brother as a party in the appeal).

Justice Pittman wrote the unanimous opinion for the court, which is excerpted here in part, beginning at page 880:

“Courts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937). Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment, it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act. Thrash v. Thrash, 385 So.2d 961, 963 (Miss.1980), quoting Becker v. King, 307 So.2d 855, 858-59 (Fl.App.1975).

Johnnie relies on Pittman v. Pittman, 375 So.2d 415 (Miss.1979), in support of the arguments raised in issues I, III and IV. The facts in Pittman reflect that Ella Polk Pittman filed a petition for a divorce and requested that she be granted a divorce on the grounds of habitual cruel and inhuman treatment. The hearing was held on September 26, 1978, and the final decree was not entered until October 27, 1978. Some three weeks after receiving the letter, a decree was prepared and mailed to the chancellor. This decree was signed by the chancellor and filed on October 27, 1978. Petitioner died in the interim on October 17, 1978.

This Court held, on the facts of the case, that the death of the party prior to the entering of the decree had rendered moot the question on divorce, stating that “all issues in the case were incidental to the request for a divorce and the contest thereon, and the entire cause died with the complainant.” Pittman, 375 So.2d at 417.

Unlike the facts in Pittman, in the present case, there was a formal adjudication of the issues in writing and signed by the chancellor, prior to the death of one of the parties.

Johnnie also cites Griffith, Mississippi Chancery Practice § 620, at 667 (1950), which states in part:

A valid decree cannot be rendered in favor of two persons, one of whom at the time is dead. Such a decree is void. And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit-although the interlocutory decree was rendered while he was alive.

The general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce. Pittman v. Pittman, 375 So.2d 415 (Miss.1979).

The case of Thrash v. Thrash, 385 So.2d 961 (Miss.1980), is directly analogous to the case sub judice. In Thrash, the wife petitioned the court for a divorce on the ground of habitual cruel and inhuman treatment. The husband answered and filed a cross-bill in which he prayed for a divorce upon similar grounds. The case was fully tried and submitted to the chancellor for final decision. The chancellor took the matter under advisement and on March 31, 1978, determined all issues on the merits and rendered his decision by written opinion. The opinion was signed and filed with the clerk on April 1, 1978. The chancellor awarded the husband a divorce upon the grounds set forth in the cross-bill. A decree was drafted, approved by both solicitors, and forwarded to the chancellor for signature. This decree was duly received by the chancellor on April 8, 1978, signed by him on that same date, but dated April 10, 1978. The husband was killed on April 9, 1978.

On May 16, 1978, Pearl Marie Thrash filed a suggestion of death and motion to dismiss. The motion was based on the fact that the appellee had died prior to the decree’s being filed. The chancellor dismissed the motion and ordered the decree of divorce theretofore signed by the chancellor, to be entered nunc pro tunc, the date it was signed by the first chancellor, April 8, 1978.

The appellant in Thrash claimed that the decree signed by the chancellor on April 8, 1978, and dated April 10, 1978, was without effect and a nullity because appellee died on April 9, 1978, before the decree was filed with the clerk.

The majority opinion in Thrash relied on Section 11-7-25, Mississippi Code Annotated (1972), which in pertinent part provides:

Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living….

Applying § 11-7-25, this Court determined that “in a case such as this, where the case has been fully tried and finally decided on its merits and nothing remains to be done except the entry of a decree, the decree would follow as if both parties were living.” Thrash, 385 So.2d at 962.

We have concluded that, in the absence of some special circumstances such as would cause a miscarriage of justice by so doing, the provisions of that section [§ 11-7-25] apply in a case such as this, the death of the husband having occurred long after the formal decision of all issues by the trier of facts. To hold otherwise, we think, would work a manifest miscarriage of justice.

Thrash, 385 So.2d at 964.

In the present case, from a technical standpoint, Luther died while married, since his death was prior to the entry of the decree. However, the record clearly indicates that all submitted issues had been litigated and ruled upon by the chancellor on November 2, 1992. Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.

In addition to the reliance on § 11-7-25, the Thrash opinion quoted extensively from 104 A.L.R. 654, 664 (1936):

The general rule, so far as a general rule may be deduced from the few cases falling within this subdivision, is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. [citations omitted] But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date. [citations omitted]

Id. at 962-63.

Because the chancellor both fully considered all issues raised by the parties and rendered his opinion prior to Luther White’s death, the order entering judgment of divorce nunc pro tunc was not manifestly in error, and as such, does not create reversible error.

Although the case can be construed to apply narrowly to its peculiar facts, it’s hard to get around the basic principle announced in it that, ” … all submitted issues had been litigated and ruled upon by the chancellor … Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.”

It’s not easy to square that general principle with the current strict application of R58 and 79. This is the MSSC’s word on the subject, though, and it is still good law.

Another post dealing with White and entry of judgments is at this link.

Where Am I?

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