The Nexus Between Separate Maintenance and Desertion
December 10, 2013 § Leave a comment
Brenda Reeves left her husband Howard in February, 2008, and, soon after, Howard sued her for separate maintenance. Brenda responded with a motion to dismiss, and, after a hearing, the chancellor found that Howard’s abuse of alcohol, and his physical and emotional abuse of Brenda, were the proximate causes of her departure. He dismissed Howard’s complaint for separate maintenance following the trial, in February, 2010.
In March, 2010, Howard filed a Complaint for Divorce on the ground of desertion, which he shortly after dismissed.
In April, 2011, Howard filed another Complaint for Divorce on the ground of desertion. Brenda again filed a motion to dismiss, which the court denied. At trial in February, 2012, Brenda argued that Howard’s complaint should be dismissed because, under Mississippi law, if the plaintiff had previously filed an unsuccessful separate maintenance action, he must prove that he made a good-faith offer to reconcile with his spouse at least one year prior to filing the divorce complaint. The chancellor ruled that Howard had not submitted adequate proof to meet his burden, and he dismissed Howard’s complaint. Not at all happy with the outcome, Howard appealed.
In the COA case of Reeves v. Reeves, decided December 3, 2013, the COA affirmed the trial judge’s ruling. This is case law of which you need to be aware. Here is how the COA, by Judge Ishee for a unanimous court, addressed it:
¶8. Howard asserts the chancery court erred in finding that he failed to meet the one-year requirement for seeking a divorce on the ground of desertion. As such, Howard also asserts that the chancery court erred in failing to grant him a desertion-based divorce. The supreme court has addressed divorce cases such as the instant case wherein a separate maintenance action has been adjudicated prior to the filing for divorce on the ground of desertion. See Day v. Day, 501 So. 2d 353, 354 (Miss. 1987). In Day, the supreme court summarized desertion as follows:
If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.
Id. at 356 (citation omitted).
¶9. However, the determination of whether desertion exists is viewed differently in light of an adjudicated separate-maintenance order. Id. (citation omitted). The supreme court noted that if a plaintiff seeking divorce can show that, “since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, [then] the defendant is now a deserter and the plaintiff is entitled to a divorce for desertion.” Id. (citation omitted). The proof must show that the plaintiff was “honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.” Id. at 357 (quoting Rylee v. Rylee, 142 Miss. 832, 840-14, 108 So. 161, 163 (1926)).
¶10. The evidence before us fails to prove that Howard made a good-faith reconciliation offer at least one year prior to April 11, 2011, as required by Day and Rylee. Howard testified at trial that he called Brenda once a month asking to reconcile. Brenda disputes this fact and further asserts that Howard’s occasional generic request to reconcile did not include a promise that he would seek rehabilitation for his alcohol abuse, nor did his requests include repentance for his prior abusive actions toward Brenda or promises that the abuse would not occur again. The evidence shows that the only good-faith reconciliation offer acknowledged by both parties was made on or about June 7, 2011 — approximately two months after Howard filed his complaint for divorce on the ground of desertion.
¶11. This was reflected in the chancellor’s following comments made during his ruling:
It seems to me that after a separate[-]maintenance proceeding, in order for the time to start ticking under Day, it is incumbent upon Mr. Reeves to make a good[-]faith offer. . . . I don’t have proof that I think rises to a preponderance of the evidence to show that Mr. Reeves made an offer for Mrs. Reeves to return home, satisfying whatever concerns she may have had, that would have started the one year running as contemplated by Day. I’m going to decline to talk about the reasonableness or unreasonableness of these post[-]filing offers that have transpired between Mr. and Mrs. Reeves . . . .
We agree with the chancellor. The law is clear that, under these circumstances, Howard was required to make a good-faith reconciliation offer at least one year prior to filing a complaint for divorce on the ground of desertion. The evidence simply does not show that he did so. As such, the chancellor did not err in his determination that Howard failed to meet the one year requirement at issue. This issue is dispositive of Howard’s second claim on appeal that the chancery court erred in failing to grant him a divorce on the ground of desertion. These issues are meritless.
Two observations:
- Notice in ¶10 that the COA finds from the record that Howard had neither (1) undergone rehabilitation for his alcohol abuse, nor (2) repented for his prior conduct. This is language that you can use when you have a separate maintenance case in which the payer claims to have had his offers to reconcile rejected. It seems that what the COA is saying is that the offeror must prove measures to reform, and must make amends with the offended party. “Generic” offers to return home won’t cut it.
- Cases of this type were more common before irreconcilable differences divorces by consent became available. Every now and again one runs into a pleading and procedural scenario like the Reeves case presented, and you have to be prepared to meet it. Remember that it takes more to prove desertion than mere separation without fault for a year or more. Since a good-faith offer of reconciliation within the one-year period will stop its running, the offended party must prove that she or he would have been willing to reconcile within that first year if a bona fide offer to do so had been made, but none was made.
Equitable Division of Personal Injury Settlement Proceeds
December 2, 2013 § Leave a comment
Gail Williams received more than $50,000 from Dow Chemical in settlement of a defective breast implant suit she had filed. She deposited the money in an account separate from her husband, Phillp, and spent some of it. When the couple went through a divorce, Phillip argued that the remaining $25,000 was acquired during the marriage, and that it should be subject to equitable distribution. He pointed out that the breast implants had been paid for with $8,000 of marital funds; ergo, the proceeds from them should be marital property. The chancellor treated the account as Gail’s separate property, not subject to division, and Phillip appealed.
The COA affirmed on November 5, 2013, in Williams v. Williams. Judge Fair’s opinion includes a nifty recitation of the applicable law. Here it is:
¶15. As recognized by the chancellor, in an equitable division of property brought into or acquired during a marriage, the property must first be subjected to a Hemsley analysis, the determination of whether assets are marital or separate and assignment of a value to each item or groups of items. Property acquired during marriage is presumed marital. In this case Gail had received a money settlement based on defective breast implants made by Dow Chemical Company during the marriage. She kept it, however, in a separate account in her name only. The sum in the account was alternatively stated in the record as $25,097, $25,075, or “about $25,000.”
¶16. The Supreme Court of Mississippi had wrestled with determination of the status of personal injury settlements as marital or separate property long before it handed down the Hemsley and Ferguson cases on July 7, 1994. In fact, in Hemsley it noted specifically the case of Regan v. Regan, 507 So. 2d 54 (Miss. 1987), as a harbinger of things to come. In Regan, using language adopted in Hemsley some seven years later, the supreme court had held that:
Incident to a divorce the Chancery Court certainly has the power to look behind the formal state of title to property and decree an equitable division of jointly accumulated property, the division to be made by reference to the economic (though not necessarily monetarily economic) contributions made by each to the acquisition and maintenance of the property. Pickle v. Pickle, 476 So. 2d 32, 34 (Miss. 1985); Spearman v. Spearman, 471 So. 2d 1204, 1205-06 (Miss. 1985); Watts v. Watts, 466 So. 2d 889, 890-91 (Miss. 1985); cf. Pickens v. Pickens, 490 S o.2d 872, 875-76 (Miss. 1986). Here, however, the evidence is overwhelming that these monies derived in substantial part, if not in whole, from Lloyd’s personal injury claim. The Chancery Court in its opinion notes:
It is undisputed that the origin of the money was a 1981 settlement of a personal injury/loss of consortium claim arising from defendant’s [Lloyd’s] injuries.
While it is true that the evidence suggests that a good bit of the settlement proceeds have been expended for the mutual benefit of the parties, there is no evidence that Lloyd ever made any gift of one-half or any other part of the proceeds to Jeanette. See May v. Summers, 328 So. 2d 345, 347-48 (Miss. 1976); Tucker v. Tucker, 252 Miss. 344, 358, 173 So. 2d 405, 411 (1965). To the extent that the funds reflected by the certificate of deposit were in fact derived from the Lloyd’s maritime personal injury claim, they are his property and may not be ordered shared with his wife as a part of a property division incident to divorce proceedings. See Amato v. Amato, 180 N.J. Super. 210, 434 A.2d 639, 641-44 (1981).
The Chancery Court erred when it ordered the certificate of deposit divided equally between the parties. Rather, the property division should have reflected, pro-rata, the extent to which the settlement proceeds were fairly attributable to the respective claims of Lloyd and Jeanette. On this appeal Lloyd strongly urges that Jeanette had no claim and, accordingly, that he should receive the entire certificate of deposit. There is enough in the record, however, to suggest to us that this may well not be the case. Under the circumstances we remand to the Chancery Court and direct that court to determine the amount of the $225,000.00 settlement attributable to the claims of Lloyd and the amount of that settlement attributable to the claims of Jeanette. The proportions can then easily be calculated from which it will follow that the certificate of deposit will be divided in those proportions.
Regan v. Regan, 507 So. 2d 54, 56-57 (Miss. 1987).
¶17. Regan was recognized twelve years later by this Court in decisions, later affirmed by the supreme court, holding that funds acquired in a personal injury case are not automatically separate property. Justice Mills began the supreme court’s opinion by noting:
We granted certiorari to address the division of personal injury settlements between spouses in divorce proceedings. The Court of Appeals found that the law has broadened in favor of the non-injured spouse since we last squarely addressed the issue in Regan v. Regan, 507 So. 2d 54 (Miss. 1987). The Court of Appeals reversed and remanded to the Chancery Court of Panola County for further proceedings. Tramel v. Tramel, *** So.2d ***, 1998 WL 536861 (Miss. Ct. App. Aug. 18, 1998). Finding the decision of the Court of Appeals to be correct, we affirm.
Tramel v. Tramel, 740 So. 2d 286, 286 (¶1) (Miss. 1999). Revisiting the subject addressed in Regan was found appropriate because:
In 1994, this Court completely transformed the law of property division in divorce proceedings in Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994), and Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994). In Hemsley, we held:
We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.
Tramel, 740 So. 2d at 288 (¶9).
¶18. In their Tramel opinions, both of our appellate courts described the three approaches being taken by other states in classification of personal injury settlements in equitable division cases. They drew from the comprehensive discussion in the South Carolina Supreme Court Case of Marsh v. Marsh, 437 S.E.2d 34 (S.C. 1993), which set out the three methods of classification then in use: (1) award to the injured spouse; (2) the analytic approach in which compensation for pain and suffering is personal, compensation for loss of wages during the marriage is marital, but future economic compensation non-marital; and (3) a mechanistic finding the settlement, since acquired during marriage, is wholly marital property. Declining, however, to leave the choice of approaches to the trial court as did the South Carolina court, our courts adopted the reasoning in Georgia and North Carolina cases, rejecting the first and third mechanistic approaches and adopting the analytical approach. Our supreme court expressly overruled any provisions of Regan contrary to its adoption of the analytic approach and held that the lines “a chancellor must draw, as difficult as they may be, are these:
1) that portion of the proceeds allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and,
3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.
Tramel, 740 So. 2d at 291 (¶18).
¶19. In her opinion in this case, the chancellor found:
After a careful consideration of the proof presented in this matter and the application of the above summarized guidelines, the Court finds all of the real property and personal property addressed in these proceedings is marital property subject to equitable distribution, with the exception of the personal injury settlement proceeds received by Gail. Those funds are contained in the Woodman of the World account #973 in Gail’s name, in the approximate amount of $25,097. See Exhibits 17, 18 and 32. These funds were obtained by Gail as a result of a settlement with Dow concerning defective breast implants. Pursuant to the principles set forth in Tramel v. Tramel, 740 So. 2d 286, 291 (Miss. 1999), the Court finds those personal injury proceeds were for Gail’s pain and suffering and disfigurement. Further, insufficient proof was presented to establish those funds had been co-mingled with marital assets.
(Emphasis added). The account records show the principal amount deposited and withdrawal of interest, as testified to by Gail, on that money, which she said was commingled with marital funds. Gail testified that her full settlement was for $45,000, and she was additionally awarded $5,000 for medical expenses for corrective surgery. She paid $20,000 for a new car, a marital asset, and placed the remaining $25,000 in a separate account. She related that she and Phillip discussed why she wanted it in her name at the time. “It was for pain and suffering,” she said three times in her testimony, adding that the additional $5,000 was for medical expenses. She concluded by saying that there were also accounts in Phillip’s name only and that she wanted to have that account in hers only. It was established that the cost of the implant surgery, which occurred fifteen years before trial, was paid from the marital checking account. The amount paid is not in the record on appeal, although Phillip claims it is, and that it is $8,000. The chancellor found Gail’s testimony that the amount left in the account is for pain and suffering to be credible, and not directly contradicted by Phillip’s testimony.
¶20. We affirm the chancellor’s finding the settlement proceeds were separate property as well within her discretion.
Not much more needs to be said except that what you have there is the body of a brief if you’re ever called upon to recite the law on the issue of equitable distribution of personal injury settlement proceeds.
A Few More Suggested PSA Provisions
November 26, 2013 § Leave a comment
Here are a few more suggested PSA provisions you may find helpful, courtesy of David Rogers, Esq., of Pascagoula.
As with the previous post where I offered some suggestions for PSA provisions, there is no guarantee that any of these will be effective in any given court. They are suggestions for points you might want to cover in your own PSA’s. You may have better or other ways to state the same points.
Dealing with electronic contact in the digital age …
Telephonic/Digital Visitation – The parties agree and understand that should such means be available, during such times as the minor children is in the physical custody of the other party, the noncustodial party shall be allowed Telephonic and/or digital visitation with the minor children via telephone, electronic mail, instant messaging, video conferencing, social media, and other electronic means each and every even numbered day for a period of not more than 30 minutes total to begin no later than 7:30 p.m. in the time zone in which the minor children is/are located. Neither party shall be required to maintain electronic equipment and/or accounts necessary for said telephonic and/or digital visitation. Should the custodial parent incur and additional cellular fees as a result of the noncustodial parent’s telephonic/digital visitation, the non custodial parent shall reimburse the custodial parent for said fees within ten (10) days of receipt of the original bill from the custodial parent.
Responsibility for transportation within mileage limits …
Should the parties live within one-hundred (100) miles of each other, then Husband/Wife shall provide transportation for the minor children to and from each and every visitation.
Should the parties live apart by a distance greater than one-hundred (100) miles of each other, then the parties shall meet at a half-way point for all visitation exchanges and be responsible for their own transportation cost.
Should the parties live apart by a distance greater than (distance varies/check with client) two-hundred (200) miles of each other, then Husband/Wife’s every other weekend visitation shall be suspended until such time as the parties reside within two-hundred (200) miles of each other again.
In the event of military deployment per MCA 93-5-34 …
(a) The term “deployment” means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.
(b) The term “mobilization” means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, “mobilization” does not include National Guard or Reserve annual training.
(c) The term “temporary duty” means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.
(d) The term “family member” means a person related by blood or marriage and may include, for purposes of this statute, a step-parent, grandparent, aunt, uncle, adult sibling or other person related by blood or marriage.
(e) When the custodial parent, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the custodial parent’s residence having a material effect on the non-custodial parent’s ability to exercise custody responsibilities:
(f) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;
(g) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and
(h) The deployed parent shall provide timely information regarding the parent’s leave schedule to the non-deployed parent.
(i) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the non custodial parent’s visitation rights shall be exercised by a family member of the noncustodial parent for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.
Averaging Valuations
November 18, 2013 § 1 Comment
I’ve whined here before about inadequate proof of values in equitable didtsribution cases and the burden it places on the trial judge. I won’t repeat my plaints here.
The latest case where a chancellor had to make a decision with far-less-than-precise proof of values is Williams v. Williams, decided by the COA on October 5, 2013.
Phillip and Gail Williams were before the court in a divorce where the main matter in dispute was equitable distribution. Neither party produced an appraisal of a residence and real property in Alabama. Instead …
- Phillip introduced a document styled “An Acknowledgment of Lease Purchase Agreement” by which Phillip purported to sell the property to a purchaser for installment payments of $325 a month until he could “obtain a loan to pay off the balance of $40,000 … less the $325 a month without interest …” The document was filed among the land records in Alabama. In his testimony, Phillip stated that the purchaser would, indeed, be paying more than $50,000 for the property.
- Gail introduced a tax receipt showing that the property was valued for tax purposes at $61,100, with $43,900 attributed to the house, and the remainder to the underlying property.
Also included in the adjudication were the parties’ householdd goods, yard equipment, and tools, the values of which were in dispute between the parties, and for which there was no appraisal. Each party accused the other of undervaluing the items that he or she would keep, while overvaluing the items that the other would receive.
The chancellor averaged Phillip’s claimed $40,000 value with Gail’s tax receipt value of $61,110, and adjudged the value of the Alabama property at $50,550. She also averaged the parties’ valuations of the personalty.
Phillip appealed, complaining that the chancellor was in error in averaging the values.
Judge Fair, for the COA, addressed the issue this way:
¶31. In McKnight v. McKnight, 951 So. 2d 594 (Miss. App. Ct. 2007), we held that the averaging of proposed appraisals was allowed in valuation of marital realty. Even more recently we held chancellors are required only to do the best they can with what is introduced into evidence before them:
[T]he chancellor cannot be blamed for the failure of the parties to present evidence of valuation. Faced with similar circumstances, this Court held as follows in Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999):
[T]he chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.
It was not the chancellor’s duty to obtain appraisals of the marital property. Willie cannot now complain that the chancellor’s valuations are unfair when no reliable evidence of the value of the property was presented at trial. This issue is without merit. Common v. Common, 42 So. 3d 59, 63 (¶¶12-13) (Miss. Ct. App. 2010).
¶32. We find the chancellor’s averaging of valuations provided on Rule 8.05 forms submitted in the record and discussed on the record an acceptable course of action and within her discretion.
¶33. Overall, we find Phillip’s objections to the characterization, valuation, and division of marital property to be based on the evidence and within her discretion under Hemsley, Ferguson, and their progeny.
I get it that in some cases the cost of obtaining appraisals can seem disproportionate to the advantage to be gained. And there are some cases where one side, if not both, would prefer for the proof to be fuzzy in hopes that the chancellor will fall their particular way.
When you leave it up to the trial judge to resolve inconclusive or incomplete evidence, you get what you get. As long as the chancellor “explored the available proof and arrived at the best conclusions that he could,” and did not otherwise abused discretion, you will be stuck with the results.
The Final Word: No Written Agreement = No ID Divorce
November 12, 2013 § 5 Comments
We visited the COA case of Sanford v. Sanford here, back in May of 2012. Sanford is a case where the chancellor allowed the parties to dictate a settlement agreement into the record, accepted it as a final settlement of all issues, and granted an irreconcilable differences divorce.
The COA, in a case I described as a “Shortcut to Failure,” reversed, finding that, since there was no written agreement as required by the statute, the divorce had to be set aside.
But, lo, the MSSC granted cert in the case and took it into its bosom, where it has reposed since, piquing speculation that, perhaps, the Supremes were prepared to take a different tack. After all, if the high court intended to leave the COA decision undisturbed, why grant cert, right?
The speculation grows out of the outlier case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), which did approve a chancellor’s grant of a divorce based on an announced settlement in open court, without a separate, written agreement. The case goes against a long line of holdings to the contrary, including the most recent, Reno v. Reno, which we posted about here.
So, the COA had reversed Sanford, holding that a written agreement is a sine qua non for an ID divorce. On cert, surely the MSSC pointed a new direction, didn’t they?
Well, in a word: no.
In Sanford v. Sanford, rendered October 31, 2013, penned by Justice Pierce, the high court affirmed the COA, saying that, “Because the requirements of neither [MCA] Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the judgment of the Court of Appeals, reverse the judgment of the Chancery Court of Lamar County, and remand the case for further proceedings consistent with this opinion.”
That would appear to put the final, end-stop punctuation to the procedure in which the assembled parties and lawyers try to announce a settlement on the record to obtain an irreconcilable differences divorce. No written agreement = no ID divorce. No written consent = no ID divorce. It’s that simple.
This would also seem to be the last gasp of Bougard.
Where Do the Children’s Vehicles Go?
August 28, 2013 § 4 Comments
The parties have complied with the court’s order to produce at trial a consolidated list of all the marital assets. There, among all the end tables, pots, pans, what-nots, and nick-nacks, is the 1994 Honda auto — worth $15,275 — that was purchased for the daughter to transport herself to and from college. Husband says wife should get it in equitable distribution, and wife says husband should get it. Whoever winds up with it gets a $15,275 bump in the asset column.
Those were the essential facts in the COA case of Terrell v. Terrell, decided July 16, 2013.
In that case, Robert Terrell had purchased the car for his daughter, Catherine, titled it in her name, and transferred ownership to her. The chancellor nonetheless included the vehicle in wife Mary Terrell’s share of equitable distribution. Mary appealed, arguing that the asset value of the car erroneously inflated her allocation of the marital estate.
The COA agreed with Mary, reversing and rendering:
¶17. We agree that the vehicle should not have been deemed a part of the marital estate. While it was purchased during the course of the marriage, it is not marital property, nor is it separate property. Rather, it was a gift from Robert and Mary to Catherine, who was a third-party recipient. Catherine has retained physical custody of the vehicle and has been the legal title holder of the vehicle since it was purchased. It was not an asset of Robert or Mary either jointly or separately. Accordingly, we reverse and render this issue specifically for the elimination of Catherine’s automobile from the marital estate.
The outcome here is pretty clear, but there are all kinds of permutations of this fact scenario, in my experience. Robert could have kept the car titled in his name, for insurance purposes. Or the car could have been titled in Mary for the same reason. Some parents want the car titled in either or both names solely as a control mechanism. Sometimes the car is titled in one parent’s name until the child pays some consideration for it. The possibilities are limited only by one’s imagination.
I have put the child’s auto in the column of a parent who testified that he had the car titled in his name, and did not know whether he would continue to provide the child with a vehicle. It seems to me that where the car goes depends on the particular facts of the case. In general, however, I think it’s safe to say that if the car is clearly going to stay with the child, it should be kept out of equitable distribution, and if it is really only a chattel that a parent is going to exercise control over, it should go with that parent.
I do the same with the children’s furniture and moveables.
One final point. There is plenty of case law that says if one part of the determination of assets-equitable distribution-alimony triangle is disturbed, the chancellor must look at it again and redo the whole ball of wax. Here, the appeal result is to reduce Mary’s distribution by $15,275, a not inconsiderable chunk of change. I just wonder why this was rendered and not remanded.
Inadequate Findings in a Factor Case = Remand
August 21, 2013 § 3 Comments
Most lawyers, when they are through with a case, don’t want to revisit it. That’s what makes a remand so detestable. Those do-overs are a pain.
The most sure-fire way to get a do-over is for the trial judge not to address the factors in a factor case. For those of you who have not been paying attention, certain kinds of cases require that the chancellor consider certain factors in making an adjudication. I have called it Trial by Checklist. When the chancellor does not tick off the items on the checklist, remand is practically automatic.
The latest example is the COA’s August 13, 2013, decision in Pelton v. Pelton, in which the chancellor did not: classify the assets as marital or non-marital; do an analysis of the Ferguson factors in making equitable distribution; or apply the Armstrong factors for alimony. Result is a do-over.
If you wind up with an adjudication in which you feel that the chancellor did not address the applicable factors, or where you feel that they were not adequately addressed, here are several suggestions to remedy the situation:
- File a timely R59 motion asking the court to make specific findings on the applicable factors. In Pelton, the parties did file post-trial motions, but the COA decision does not spell out what the parties were asking the court to do.
- If you are concerned that you did not make a good enough record for the judge to make findings on the proper factors, ask the court to reopen the proof to allow you to make a record. That would be a R59 motion, which must be filed within 10 days of the judgment.
- You can also in a R59 motion offer to do proposed findings of fact and conclusions of law.
Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
Another Non-Family-Use Case
August 7, 2013 § 2 Comments
I’ve mentioned here before that I am no big fan of the “family-use” doctrine that morphs separately-owned property into marital merely because it was used by the family.
There are some exceptions to the rule, however, as I have posted about. Here is a post where the COA refused to apply it. Here is another post where I pointed out cases holding that neither plantation and maintenance, nor payment of taxes, nor even joint titling convert separate property into marital.
The latest case, Renfro v. Renfro, decided by the COA on July 30, 2013, is yet another where the appellate court did not agree with the chancellor’s application of the concept.
Claudia and Johnny Renfro married in 1987, and had no children. In January, 2011, they separated after Claudia discovered that Johnny was involved in an adulterous affair, and Claudia sued for divorce.
At issue in the divorce was equitable distribution. The parties had accumulated the usual marital things, including cars, retirement accounts and other financial assets, a residence. In addition to all of the other assets, there was a 140-acre tract of unimproved land that Claudia’s mother had deeded to her in 2007.
Following a trial, the chancellor adjudicated all of the assets, including the 140-acre tract, to be marital property subject to division. She allocated one-half of the assets, which totalled in value nearly $600,000, to each party. In her opinion, the chancellor found as to the 140 acres as follows:
The testimony and evidence is substantial that the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny]. Further, and perhaps most importantly, [Claudia] indicated that the development and management of the property as a tree farm was for the purposes of providing income for the parties’ retirement. As such, the court finds that the normally non-marital character of the property was changed by the family[-]use doctrine, Algood [v.] Algood, 63 So. 3d 443 (Miss. [Ct.] App. 2011), as well as by conversion by implied gift, Algood, supra, such that the property lost its non-marital nature and now must be considered marital property subject to equitable distribution.
Claudia appealed, complaining primarily that the 140 acres was not marital property subject to division, and that the chancellor had misinterpreted the evidence.
In its opinion, penned by Judge Carlton, the COA found that there was inadequate evidence to support the judge’s finding that the tree farm on the property had been developed as part of the parties’ retirement plan.
As for the other indicia of family use relied upon by the chancellor, the COA said:
[¶16] … We also find error in the chancellor’s determination that Johnny’s actions of enrolling the land in government programs, planting trees, leasing the land for hunting purposes, constructing gates and roads, spraying the land, and paying taxes on the property constituted sufficient evidence to convert the land into a marital asset. See Hankins [v. Hankins,] 729 So.2d [1283]at 1286-87 (¶15); Ory [v. Ory], 936 So. 2d [405] at 411 (¶15). This Court has held that property-tax payments are traceable and do not transmute separate property into marital property. Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005) (quotation omitted) (“[T]he key to determining when there has been transmutation [from separate property to marital property] by commingling is whether the marital interests can be identified, i.e., can be traced.”). We also find no evidence submitted by Johnny to show how the land increased in value during his marriage to Claudia, or that an agreement existed between Claudia and Johnny that Johnny’s actions of managing the land would give him an interest in the property.
¶17. As acknowledged, nonmarital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson, 650 So. 2d at 1286. However, Claudia testified that she and Johnny never used the land for any family purposes. Significant to our analysis, we recognize that in the recent and similar case of Marter v. Marter, 95 So. 3d 733, 737-38 (¶¶14-16) (Miss. Ct. App. 2012), this Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to marital property by virtue of commingling.
¶18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005). The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2]. Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property — specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion.
That is a template you might be able to use in extricating your client’s property from the grasping tentacles of the family-use doctrine.
It’s still beyond me that activities like infrequent use of a beach condo, or fishing in a lake, or use of an antique chair, would convert separate property to marital, while plantation and maintenance would not. But, hey, I’m not complaining. Any exception to this rule is gratefully welcomed by me!
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