MAKING YOUR UNCONTESTED DIVORCE BULLETPROOF
January 30, 2012 § 1 Comment
We’ve talked here before about whether you should make a record when you present an uncontested divorce.
In Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008), the COA held that an appellant who had failed to answer, defend or otherwise appear in the case could not raise for the first time on appeal issues about the sufficiency of the chancellor’s findings.
So what happens when the defaulted party does appear via a timely motion under MRCP 59, say, and asks the chancellor to set aside the judgment because she failed to make the required findings of fact under Ferguson, or Armstrong, or any of the other required checklists of factors? That’s what happened in the case of Lee v. Lee in the chancery court of Desoto County. Corey Lee showed up late for his divorce trial, popping in just as the chancellor was in the middle of his opinion dividing the marital estate, awarding custody, and assessing child support. Corey enlisted a lawyer who filed a timely MRCP 59 motion.
In his motion, Corey challenged the judge’s ruling on the basis that it did not address the Ferguson factors for equitable distribution. The judgment did state that it was based on consideration of the Ferguson factors, but did not spell out the evidence relied on as to each applicable factor as required under Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss. 1997).
On appeal the COA affirmed, citing Luse.
The Supreme Court granted cert, and in an opinion rendered January 26, 2012, in Lee v. Lee, Justice Dickinson said for the court:
¶7. A divorce judgment entered when a party fails to appear is “a special kind of default judgment.” [Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss. 1988)]. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions under Rules 52, 59, or 60 of the Mississippi Rules of Civil Procedure. [Mayoza, 548-49.] Although Corey filed a Rule 59 motion, the Court of Appeals held that the motion did not address the equitable-distribution issue; and, therefore, the issue was procedurally barred.
¶8. In its holding, the Court of Appeals relied on Luse v. Luse, in which, John Luse neither answered his wife’s complaint for divorce nor appeared at the divorce hearing. The chancellor granted John’s wife a divorce and awarded her ownership of marital property. John never filed a timely post-trial motion challenging the property division, so he first raised the issue on appeal, and the Court of Appeals properly held that John’s claim was procedurally barred.
¶9. But unlike John Luse, Corey Lee raised the issue before the chancellor. In his Rule 59 motion, Corey argued that the division of martial property was inequitable. At the hearing on the motion, Corey’s attorney specifically argued that the chancellor had failed to make findings of fact and conclusions of law, as required by Ferguson. Therefore, Corey is not procedurally barred from raising this issue on appeal.
* * *
¶13. By failing to appear at the hearing, Corey forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. Corey did so in his Rule 59 motion and at the hearing following it. The fact that Corey failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.
The decision reversed the COA and the chancellor, setting aside the divorce.
So how do you avoid the same trap the next time you present an uncontested divorce? My suggestion is that you make a point of putting on proof of each factor, and prepare proposed findings of fact and conclusions of fact, incorporating them in the judgment you hand to the chancellor at the conclusion of the hearing. Make specific findings as to each checklist factor that applies in your case. If you are asking for equitable distribution, address the Ferguson factors. For custody, address the Albright factors. For alimony, address Armstrong. And so on through as many as apply in your case. You know in advance (or you should know) what your client’s testimony will be on each point, so simply wrap it up into a neat package for the judge. In the alternative, you lazy lawyers can appear and just put on the proof and ask the chancellor to do it. If the chancellor is in a benevolent mood, he or she might do it for you. Or you may be dispatched to do it yourself and come back another time.
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § 3 Comments
Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.
Protection from debts incurred by the other party:
Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.
Attorney’s fees:
Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.
Where other documents will be necessary to finalize the entire settlement:
Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.
To confirm and ensure that there are no unwritten or side agreements:
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.
Release of all claims:
Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .
Where the parties want the agreement to be enforceable whether or not approved by the court*:
Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.
A useful provision to ensure that there are no open-ended obligations:
Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.
Where one party is not represented:
Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.
Clarification that tax advice has not been rendered:
Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.
Closing the door on a party claiming later that the property should have been appraised:
Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.
If a former name is to be restored, it is a good idea to include that agreement in the PSA:
Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.
There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.
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* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.
TEMPORARY SUPPORT AND ITS IMPACT ON THE FINAL OUTCOME
December 6, 2011 § Leave a comment
I argued with sporadic success when I was in practice that the court should consider the amount of temporary spousal support paid when making its final determination of equitable distribution. It’s only logical, when you think about it. The paying spouse is having to defer further accumulation of wealth to support the other, and, in some cases, is required to deplete a separate estate to do so. Many divorce cases take months, even years, to come to trial, and the payments for temporary support do mount up.
So what is the likelihood that you can prevail with such an argument?
A case you can cite for authority is Wells v. Wells, 35 So.3d 1250, 1258 (Miss.App. 2010). In that case, the chancellor had considered in her Ferguson analysis under “Any Other Factors That Should be Considered” the fact that the husband had paid the wife over $80,000 a year since the temporary judgment, including $1,500 a month in temporary alimony, and $650 a month as a grocery allowance. The COA affirmed the chancellor’s division of the marital estate, concluding that “We cannot find that the chancellor’s division was clearly erroneous. The Ferguson factors were thoroughly considered, and the division was made in such a way as to eliminate alimony.”
An arrow you might want to have in your quiver next time you’re looking to score a bullseye for your client.
MANIFESTLY NOT IN ERROR
November 30, 2011 § 3 Comments
In several recent cases the COA affirmed chancellors where the trial court’s conclusions were supported by substantial evidence and were in line with the applicable law.
In Love v. Love, decided November 15, 2011, the court upheld the chancellor’s award of custody to the mother, Jennifer, over the father, Aaron, in spite of Jennifer’s less-then-stellar behavior. Judge Maxwell’s opinion stated at ¶36:
“The cold record, Aaron argues, is fraught with examples of Jennifer’s alleged misconduct and neglect. But the chancellor had an important hands-on benefit that we lack—her personal assessments of Jennifer’s and Aaron’s credibility—both at the custody hearing and post-trial hearing. Based on these interactions, the chancellor discounted some of the negative testimony about Jennifer, accepted much of it, and evaluated all of the testimony against the evidence of Jennifer’s care for Tommy. The chancellor ultimately found Jennifer had slightly better parenting skills and that it was in Tommy’s best interest that Jennifer be awarded custody and Aaron liberal visitation. Admittedly, this is a close case. But because the chancellor supported her decision with substantial evidence, we find our deferential standard requires us to affirm.”
Love highlights an important consideration in chancery cases: that the trial judge is in the best position to weigh the credibility of the witnesses. The cold record simply does not convey the way a witness presents himself or herself, the tone of voice, the hesitations, the body language, the facial expressions. In a close case credibility can hinge on how the witness presents himself or herself. A defensive, hostile witness who snaps answers off in a sarcastic tone will come across as less worthy of weight and credibility than one who presents herself as open, honest and matter-of-fact with nothing to hide. And yet the trial transcript will present both witnesses in the same light.
In Nichols v. Nichols, also decided November 15, 2011, the COA affirmed the chancellor’s award of custody to the father, stating at ¶11 that “We find that there was substantial evidence in the record to support the chancellor’s decision to award custody of the children to [the father].”
Only the week before, in Powell v. Powell, the COA had upheld the chancellor’s decision in equitable distribution, again finding that the chancellor had applied the law properly, and that his findings were supported by substantial evidence.
In Smullins v. Smullins, decided November 29, 2011, the COA upheld the chancellor’s Albright analysis based on a finding that it was supported by substantial evidence. The opinion was rendered on rehearing, and replaced an earlier opinion that had reversed the chancellor.
There have been other decisions along these lines dating back into 2010.
In my opinion, these cases are among a growing number of COA decisions where the court is refusing to second-guess chancellors and is limiting its scrutiny to a determination whether the chancellor’s decision was supported by substantial evidence, unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or an erroneous legal standard was applied, as the familiar introductory paragraph to every chancery court appellate decision recites.
If this continues, the bonus for lawyers and judges alike will be that there will be fewer anomalous decisions, and the proliferation of case law with which we have to deal will grow at a more manageable rate. Two trends that we all can applaud.
REVISITING TRIAL CHECKLISTS
November 22, 2011 § 2 Comments
Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.
I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.
Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.
THE VALUE OF VALUATION
November 17, 2011 § 3 Comments
Some lawyers like to play a cat-and-mouse game in which they go light on some proof, expecting the chancellor to fill in the blanks in their client’s favor. Sometimes that strategy fails calamitously.
The latest case in point is Powell v. Powell, decided by the COA on November 8, 2011, an equitable distribution case. Sherida Powell and her husband James were locked in a battle over the marital estate, the major components of which were the marital residence, some future payments from the sale of a business, and James’s retirement account. The chancellor decided the values based on the proof, and sherida hit the appeal button, complaining that the judge’s adjudication of values was incorrect.
The COA, via Judge Irving, disagreed with Sherida. The opinion is instructive about what works and does not work as proof of values, so I am quoting it here:
¶20. Sherida first attacks the value that the chancery court assigned to the marital home, which James testified was worth $80,000 before he renovated it prior to his marriage to Sherida. Sherida complains that numerous documents could have been provided to prove the value of the home. While such documents could have been provided, they were not–not by James, and not by Sherida. Sherida was entitled to provide whatever documentation she could obtain regarding the value of the home; in the absence of such, we decline to find error with the chancery court’s valuation of the home. * * *
¶21. Sherida next complains that the chancellor erred in “failing to calculate the value” of the future payments on the promissory note from ASAP’s sale. We note that Sherida made no effort to provide a calculation of the future value of the payments. In the absence of any valuation of the ASAP promissory note payments, we decline to hold the chancery court in error in its valuation of the payments.
¶22. Sherida also complains that James’s retirement account should have been considered a marital asset. In her brief, Sherida concedes that the only evidence as to the value of the account came from her trial exhibit 31. That exhibit was simply a summary of Sherida’s valuation of certain assets, including James’s retirement account. It appears that Sherida’s “value” for the account is simply the percentage that she believes she should receive of each of his monthly disability checks. This did not provide the chancery court with an adequate valuation of the retirement account. No other evidence was presented by either party that conclusively established the account’s value. Under these circumstances, the chancery court did not err in declining to evaluate the account as a marital asset.
A few nuggets from this case:
- The chancellor has no duty to go out and develop your proof for you. It’s up to you to put adequate proof in the record to support your client’s position. If you don’t do so, the appellate courts are not going to entertain your complaint that the judge should have found a different way.
- The chancellor can pick and choose what to believe from equivalent proof. In other words, if each party simply lobs up a guess as to a value, the judge can pick which one to swing at and hit. It’s up to you to come up with weightier proof, like an appraisal from a qualified appraiser, or some other weightier source, if you want to have the upper hand as to values.
- If you want the judge to calculate future values or some such, then offer an expert, or a stipulated table, or something of the like. Don’t expect the trial judge to perform actuarial and trigonometric calculations when you have not provided the template to do so.
- If you fail to provide adequate proof of the valuation of a retirement account and the parties’ relative contributions to it, you do so at your client’s peril. Here, the fallout was a finding by the trial court that the account was not marital. In Pierce v. Pierce, 42 So.3d 658 (Miss.App. 2010), the fallout was a remand for further findings of fact.
- If you don’t put evidence into the record, don’t expect to be able to argue about it on appeal. And don’t expect the trial judge to rule in your favor, either.
- Once again … the more difficult you make it for the trial judge to figure out, the less likely you will prevail, as I have often said here before.
- When you have a valuation case, jump on it early. Get your client to bring you as many documents as possible, such as account balances, valuations, appraisals and financial statements. Get tax returns with depreciation info. Collect closing statements and property tax data. Use discovery to get admissions as to admissibility and authenticity of documents, and to admit values. Discover the existence of any other documents. If valuation will be contested, line up your experts. And remember that experts must be designated no later than 60 days before trial, per UCCR 1.10, if you were requested to disclose them in discovery.
There’s another interesting aspect to this case, and you can read about it here.
THE LAW OF INTENDED CONSEQUENCES
October 31, 2011 § Leave a comment
Who owns a joint savings account? If your answer is that each person named on the joint account owns 100% and is entitled to withdraw and spend all of it, step right up here with us other average intellects.
If, on the other hand, your answer was to the effect that “It depends on what the parties intended,” then take your gold star and step over there with all the other geniuses.
Here is a scenario to illustrate:
Marie, Edward, Josie and Bennie are siblings. Together they open two savings accounts and a CD for the benefit of their elderly parents.
Each account requires the signature of two of the four parties to make a withdrawal.
The mother died, and after her death Marie and Edward unilaterally withdrew some of the money and put it in a “safe place” to be used to do some repairs on property owned by the dad in which the four siblings had an ownership interest. The father then died.
It is undisputed that the siblings had agreed when they opened the accounts that, upon death of the parents, any money remining was to be divided equally among all four siblings.
Josie and Bennie took exception to the withdrawal and filed suit in circuit court for charging Marie and Edward with the tort of conversion. Marie and Edward took the position that each sibling possessed an equal ownership interest in the accounts, and that they had legal authority to make the withdrawals. They denied that there was any conversion as a matter of law, because they had absolute authority to withdraw the funds. Josie and Bennie took the position that the withdrawal violated the parties’ agreement, and that the funds were being unlawfully withheld.
The circuit judge granted summary judgment in favor of Josie and Bennie, and Marie and Edward appealed.
In the case of Stevens and Bohannon v. Smith and Bohannon, decided October 4, 2011, by the COA, the court affirmed the circuit court.
The decision recited the familiar rule of joint accounts:
Regarding joint accounts, it is well settled in Mississippi that joint-account holders have given each other absolute authority over an account “and the unconditional power to withdraw all or any part of the account.” Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061, 1066 (¶9) (Miss. Ct. App. 2001) (citing Deposit Guar. Nat’l Bank v. Pete, 583 So. 2d 180, 184 (Miss. 1991)).
Although Marie and Edward had the unqualified right to withdraw the funds, they did not have the right to deprive Josie and Bennie of their right to an equal interest in the funds. The court said at ¶ 12, Citing Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963), that ” … joint accounts are presumed to be vested in the names of the account depositors as equal contributors and owners in the absence of evidence to the contrary; however, intent of the parties is the controlling factor.” And:
The peculiar features of a joint and several bank account make it difficult, if not impossible, in most cases, to determine what portion of the account belongs to each depositor. A long series of deposits which cannot be traced to their source, and a similar series of withdrawals which cannot be traced to their destination, are normally involved. This defect is inherent in the severalty feature of such bank accounts wherein each depositor is allowed to treat joint property as if it were entirely his own. A joint bank account of this kind is generally a creature of contract between parties avowedly indifferent to the exact percentage of ownership between themselves. It is said that the law should take them at their word and give effect to their contract without making detailed evidentiary inquiries to establish factual ownership. The prevailing view seems to be, however, that while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners in the absence of evidence to the contrary, the intention of the parties is the controlling factor, and where a controversy arises as to the ownership thereof evidence is admissible to show the true situation.” [Emphasis in bold added]
Since the undisputed proof in this case was that the parties had agreed to a joint ownership arrangement for the funds remaining after the parents’ death that were not needed for their care, it was conversion for Marie and Edward to deprive Josie and Bennie of their share of the funds.
The decision does not mention the parol evidence rule. It seems to me that there are parol evidence considerations in that the agreement to deposit the money into a joint account is a contract evidenced by the signature card and the bank regulations that are usually printed on it. Doesn’t this case in essence say that the agreement between the parties can be varied by parol evidence even when the agreement is not shown to be ambiguous?
So what are the ramifications of this case for family law practitioners? In my opinion, this rationale opens another line of attack in the situation where one spouse has withdrawn money from a joint account in anticipation of divorce. I say “another line of attack” because claiming the money is subject to equitable distribution is the usual, obvious course. But what if, for instance, it is undisputed that the parties had agreed that the proceeds from sale of husband’s separately-owned horses that were deposited into a joint account were to be used specifically to pay for the college education of his child by a previous marriage instead of being divided? Or what if it had been agreed that the joint income tax refund that was deposited in a joint account was to be used 100% to pay off husband’s credit card debts that had been incurred for the household? In either case where you represented the husband, it would clearly be in his interest to look to the intent of the parties rather than to equitable distribution.
KICKING THE CAN DOWN THE ROAD
October 3, 2011 § 1 Comment
What you thought would be a simple irreconcilable differences divorce has proven to be anything but. You’re bone-weary of your client’s whining. The other party is an intransigent j*ck*$$ over every minor detail. Counsel opposite has been an uncommunicative pain and no help at all with his client. Getting all the issues nailed down has taken a monumental effort. And now, with the final draft of the property settlement agreement nearing the finish line, all that remains is to settle the personal property.
But, that is where the parties are stuck. Husband wants this and that. Wife wants this and that. Counsel opposite is no help at all. You could spend some more time insisting that the parties resolve the personal property issues, but you don’t want to make the effort, especially without any help from the other attorney.
So you say to yourself, “What the heck; let someone else deal with it,” and you draft some language to fill in that pothole in the agreement. Parties sign and judge signs the judgment.
Deal done. Case closed. For now.
Only problem is, the parties will likely be back in court sooner or later battling over that pothole.
I call that “kicking the can down the road (KCDTR).” You do enough to get by, but in the process you draft a ticket back to court for your clients. You kick the can down the road where the next person coming along will have to pick it up and deal with it.
Of course, case weariness is only one source of the KCDTR phenomenon. Some lawyers KCDTR out of sheer laziness, others out of lack of drafting skills, others from haste, and others from oversight or lack of care.
Consider a recent case I had in which the property division read, “Husband shall have ownership of the former marital residence, and wife shall have ownership of the furnishing [sic].”
Wife moved and took with her all of the furniture and her personal effects. She also took the light fixtures and window blinds, along with a barbecue grill, a fountain (she left the base), a yard sweeper implement and various other items in the yard. Husband punched his ticket back to court.
After three days of trial (there were other issues involved), it was left to me to determine whether all the stuff that wife took was “furnishing.”
No need to go into detail about my ruling. You can probably guess how it came out. My point here is that if the drafting lawyer had said, “No, I am not going to put this PSA in final form unless and until you can give me a list of all the items that you two agree that wife will remove,” we would have avoided having to try that issue later.
Incidentally, the COA case of Aegler v. Gambrell, decided April 26, 2011, offers an insight into what exactly are considered “furnishings,” “personal things,” and fixtures.
Some other KCDTR examples:
- “The former marital residence shall be sold at a price to be agreed between the parties.” What if the parties can’t agree?
- “Husband shall be responsible for one-half of the school expenses.” Husband thinks this means he will pay for daughter’s cheerleading expenses. Wife thinks it means that husband will pay one-half of the private school tuition and assessments.
- “Husband and wife shall each pay one-half of the child’s extra-curricular activities.” What activities are included, and who decides?
I could go on and on, but I hope you get my point. A lawyer is paid to draft an agreement that will avoid future problems. If you are not accomplishing that in the instruments you draft, you are taking your clients’ money and not delivering what was paid for.
FYI … you can read some tips for PSA drafting here and here. A post on some hidden dangers in some commonly-used PSA language is here. A post on the hidden costs of divorce is here. An object lesson in the ramifications of drafting is here. A few tips from Ernest Hemingway that may help improve your legal writing are here.
Draftsmanship is one of the hallmarks of a good lawyer. The good ones draft PSA’s that are clear and unambiguous, address all that needs to be addressed without unnecessary prolixity and fluff, and are not only enforceable on their own terms, but also are stout enough to withstand attack.
Good lawyering = good draftsmanship. Not-so-good lawyering = KCDTR.
EQUITABLE DIVISION AND MARITAL FAULT
August 24, 2011 § 5 Comments
It is almost a platitude of Mississippi law that, “Courts may divide marital assets between divorcing spouses in a fair and equitable manner — equal division is not required.” Bell, Mississippi Family Law, § 6.01[4].
The sticking point is where to draw the line between “fair and equitable” and “equal.” The appellate decisions come in all sizes, colors and flavors.
Bond v. Bond, decided by the COA August 16, 2011, is the latest iteration on the point. In that case, Jimmie Lee proved that his wife, Donna, had committed adultery during their four-year marriage. The chancellor awarded Jimmie Lee 90% of the equitable division, and gave Donna the remaining 10%. Jimmie Lee appealed, aggrieved that Donna got such a generous share, and charged that the chancellor erred in failing to make sufficient findings of Donna’s adultery.
Judge Maxwell’s opinion sets out the applicable law about as clearly as can be done:
In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:
(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.
Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009) (citing Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss. 1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So. 2d 1004, 1013-14 (¶26) (Miss. 2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So. 3d 1251, 1264 (¶45) (Miss. Ct. App. 2009). Rather, we examine the chancellor’s judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶52).
In Carrow v. Carrow, 642 So. 2d 901, 905 (Miss. 1994), the Mississippi Supreme Court held that a chancellor erred in finding a wife’s “adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce.” The Carrow court instructed that chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. See id. at 904 (citing Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994)). Rather, “marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Id. at 904-05 (citing Ferguson, 639 So. 2d at 927).
The court found that the chancellor had, indeed, taken into consideration Donna’s fault when he considered the Ferguson factor dealing with the parties’ relative contributions to the stability and harmony of the marriage. The chancellor had found under that factor that:
“Neither Jimmie nor Donna did all they could to provide stability and harmony to the family. Donna became infatuated with another man and her romantic relationship with this third party caused the dissolution of the marriage.”
So here are a few points to ponder about this decision:
- The rule that equitable division does not require an equal division, but only a fair division, is alive and well.
- A 90-10 split in equitable distribution will be found fair if the judge addresses all of the Ferguson factors and justifies the decision.
- The judge is only required to address all of the Ferguson factors, not to analyze them in excruciating, lengthy detail. In this case, the chancellor’s two-sentence recitation was found adequate to support the award.
This case reminded me of the student who got a 90 on a test and wanted the teacher to re-grade it in hopes of an even better grade. Jimmie Lee’s “grade” stayed the same after the appeal, but it’s somewhat of a head-scratcher why he appealed in the first place, given the pretty clear holding in the Carrow case.
WHAT, ME WORRY?
June 30, 2011 § 6 Comments
Newman
It was the philosopher Alfred E. Newman who coined the epigram, “What, me Worry?” I suspect he also came up with the fallacious thought that “What you don’t know can’t hurt you,” which as any lawyer can tell you, is tragically and dangerously untrue.
Take as a case in point Ivison v. Ivison, 762 So.2d 219 (Miss. 2000). Mrs. Ivison got the former marital residence in the divorce, and the ex-husband paid the mortgage notes. The husband deducted the payments because he was advised that payments made to a third party on behalf of another are treated as alimony and are deductible, if they are mandated in a divorce judgment or property settlement agreement and meet the other criteria for alimony. Mr. Ivison took the deduction, and Mrs. Ivison got a nice, but businesslike letter from the IRS explaining that they wanted her to pony up the income taxes, which were in an amount significant enough to give Mrs. Ivison a bad case of hiccups and send her scurrying to court.
Mrs. Ivison complained to the chancellor that she had not been advised by her attorney at the time that the payments were going to be treated as income, and that she would never have agreed to the divorce settlement had she known. She convinced the sympathetic chancellor that the ex-husband, and not she, should have to pay the taxes. She got her modification.
On appeal, the MSSC reversed and rendered. The opinion pointed out that the applicable tax law had been in effect at the time of the divorce, so the situation did not constitute a material change in circumstances. The court also held that ignorance of the law, and particularly in this case tax law, is not a reason to modify.
I do not know what happened to the attorney who did not advise Mrs. Ivison. I hope he or she had enough malpractice insurance coverage to weather the storm. This was truly a case where what you don’t know can indeed hurt you. And to put it even more pointedly: What your client does not know that you should have advised her about can indeed hurt you.
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