It Ain’t Over ’til it’s Over

February 6, 2018 § 1 Comment

It’s a hoary. ancient maxim of the law that “There must be an end to litigation,” a principle that was called into question in the case of Sandrock v. Sandrock, handed down from the COA on January 16, 2018.

The Sandrock saga began on August 1, 2005, when Jason Sandrock and his father Fred purported to enter into an agreement via a one-page, notarized document styled “Mortgage Agreement.” The agreement was for a 3,300 square-foot home in Bay St. Louis in exchange for 300 consecutive payments of $1,000 each. Neither Jason’s wife Cassie nor Fred’s wife Joellen were parties to the agreement. Jason and Cassie had been building the structure on Fred’s and Joellen’s property since November, 2004.

Before Jason and Cassie could move into their new digs, however, Hurricane Katrina severely damaged the house on August 29, 2005. The insurance company issued a check for $148, 601, to Jason, Fred, and Joellen. Jason was listed as the insured, and Fred and Joellen were listed as Mortgagees. An MDA grant check was issued to Jason, with no lienholder listed, in the amount of $149,327. Cassie was not named on either check. Jason turned over most of the money to Fred and Joellen.

On January 15, 2009, Jason and Cassie were divorced. In the divorce judgment, the chancellor found no credible evidence that Jason owed any debt to his parents for the property, and that the funds used to build the house were a gift to Jason and Cassie from Fred and Joellen. He also found that both Jason and Cassie had devoted significant time to building the house. In making equitable distribution, the chancellor ordered that the insurance and grant funds by divided equally, and for Cassie to execute a quitclaim deed to the property in favor of Jason.

In March, 2009, Cassie filed for contempt because Jason had not paid her the sums due. Jason counterclaimed asking the court to “correct” its divorce judgment to show that Fred and Joellen were owners of the property, and, therefore, that the insurance proceeds were properly theirs. The counterclaim was denied.

In May, 2009, Fred and Joellen filed a pleading seeking to intervene in the divorce action that had been adjudicated four months previously. Their motion was denied.

At this point, none of the court’s rulings or judgments had been appealed.

After the court denied their motion to intervene, Fred and Joellen filed a petition for judicial foreclosure on the property against Jason and Cassie.

On May 9, 2011, Jason filed an MRCP 60(b) motion asking for relief from the judgment to pay Cassie.

On February 23, 2012, a different chancellor from the one handling the divorce issues entered a judgment allowing the foreclosure in favor of Fred and Joellen against Jason. Cassie was not a record title holder. The court’s decision specifically did not adjudicate what effect its decision had on either the previous divorce judgment or Cassie’s interest in the money or equitable interest in the property.

On November 7, 2013, the chancellor denied Jason’s pending R60 motion.

On December 26, 2013, Jason filed a complaint for declaratory relief and injunction again seeking relief from the judgment. Following a hearing, the court denied Jason any relief on March 23, 2015. The chancellor — yet another different from the two previous — found that the relief sought by Jason was “nearly identical” to that he had sought earlier in his R60 motion. The chancellor found that, since Jason had not appealed the 2009 judgment, it was final.

Jason filed a timely R59 motion. After hearing the matter on April 7, 22016, the court denied the motion except to amend a prior order to state that Joellen had been a witness in the divorce proceeding.

Jason appealed from the denial of his R57 claim for declaratory judgment. Predictably, the COA affirmed. Judge Barnes wrote for a unanimous court:

¶18. As to the denial of Jason’s claims, under Rule 57(a) of the Mississippi Rules of Civil Procedure, “[c]ourts of record within their respective jurisdictions may declare rights, status, and other legal relations regardless of whether further relief is or could be claimed.” M.R.C.P. 57(a). On the other hand, a trial court may deny a complaint for declaratory judgment “where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Id. Noting that Jason failed to appeal the 2009 divorce judgment, and Fred and Joellen did not appeal the denial of their motion to intervene, Chancellor Persons held:

Once a judgment becomes final, it is dispositive as to all issues arising from a claim that were, or could have been, asserted by the parties to the litigation. Trilogy Communications, Inc. v. Thomas Truck Lease, Inc., 790 So. 2d 881[, 885 (¶12)] (Miss. Ct. App. 2001).

With the exception of Jason’s additional claims that the divorce judgment was not properly enrolled, the relief requested by Jason in his Complaint for Declaratory Relief is nearly identical to the relief that he sought in his [c]ounter[c]laim to [c]orrect [the] judgment, and similar to the claim that he made in his Rule 60 motion, both of which were denied by the [c]ourt. In the absence of any timely[]filed notice of appeal or any pending appeal action filed on behalf of Jason Sandrock or Fred[] and Joellen Sandrock seeking relief from either the Judgment of Divorce or from the Order which denied intervention in the divorce action, the Final Judgment of Divorce, including the [s]tipulation executed by the parties, is a valid [j]udgment upon which this [c]ourt relies and upon which the parties are bound.

Subsequently, in his bench ruling denying the Appellants’ motions for reconsideration, the chancellor concluded:

The [c]ourt and the law seek[] finality. We have two judgments, both of which are final. To the extent they’re in conflict, no one appealed. In essence, you can’t do what should have been an appeal now in a declaratory judgment action, which, in essence, we have the issues [of] res judicata, law of the case, all sorts of the legal doctrines here that prohibit us – or me from reopening these things.

¶19. We find no abuse of discretion in the chancery court’s findings. The Mississippi Supreme Court has held that “[a] final judgment on the merits of an action precludes the parties and their privies from relitigating claims that were or could have been raised in that action.” Walton v. Bourgeois, 512 So. 2d 698, 701 (Miss. 1987). “A final judgment has been defined by this Court as a judgment adjudicating the merits of the controversy [that] settles all the issues as to all the parties.” Sanford v. Bd. of Supervisors, 421 So. 2d 488, 490-91 (Miss. 1982) (citations omitted). “[A]n order is considered final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” LaFontaine v. Holliday, 110 So. 3d 785, 787 (¶8) (Miss. 2013). Jason’s complaint is, quite simply, a collateral attack on the 2009 divorce judgment, which awarded one-half of the insurance and grant proceeds to Cassie. The 2009 judgment, despite the Appellants’ argument to the contrary, is a final judgment. While not contained in the record, the chancery court noted that Jason had filed a counterclaim to correct the judgment, which was denied by the court. His Rule 60 motion was also denied. He did not appeal either decision. Thus, his request for declaratory relief is barred. The supreme court has held: “Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Little v. V & G Welding Supply Inc., 704 So. 2d 1336, 1337 (¶8) (Miss. 1997) (citation omitted). Additionally,

[r]es judicata is fundamental to the equitable and efficient operation of the judiciary and “reflects the refusal of the law to tolerate a multiplicity of litigation.” Little . . ., 704 So. 2d [at] 1337 [(¶8)]. . . . The courts cannot revisit adjudicated claims and “all grounds for, or defenses to recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding, are barred from re[]litigation in a subsequent suit under the doctrine of res judicata.” Alexander v. Elzie, 621 So. 2d 909, 910 (Miss. 1992).

Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶23) (Miss. 2005) (emphasis added).

¶20. For res judicata to apply, four identities must be present: “(1) identity of the subject matter of the action; (2) identity of the cause of/civil action; (3) identity of the parties to the cause of/civil action; and (4) identity of the quality or character of a person for or against whom the claim is made.” Miller v. Miller, 838 So. 2d 295, 297 (¶5) (Miss. Ct. App. 2002) (citations omitted). Here, the first two identities – the subject matter and the cause of action, namely the underlying facts and circumstances – are the same. In both the 2009 divorce judgment and the complaint for declaratory relief, Jason and Cassie are parties. The only difference between the two causes of action is that Jason added Fred and Joellen as defendants to the second cause. But since Jason made no claims against them, and they never acted as adverse parties to Jason (as evidenced by the fact they are now joined with him as appellants), we find the third identity requirement is met. As to the fourth identity, Cassie was named as a defendant in both causes of action. Therefore, we find all four identities are present.

¶21. Accordingly, we affirm the chancery court’s denial of Jason’s complaint for declaratory relief.

In case you hadn’t counted, 88 months — seven years and four months — after the divorce action, we finally have achieved finality. That is, we have unless Jason files something else along the lines of his earlier attempts. Stay tuned.





Family Values

November 28, 2017 § 2 Comments

A point I have harped on often around here is that you should not spare your effort to produce proof on valuation of assets — particularly retirement funds, equity, and the like. It can make a huge difference in what your client takes away in equitable distribution and/or alimony, and if you have to appeal it may be the difference between affirmance and reversal.

A recent example is the COA’s decision in Inge v. Inge, decided October 3, 2017. Denise Inge appealed, complaining that the chancellor had erred by not finding the present value of the parties’ future retirement benefits. The COA found no error. Judge Wilson succinctly rejected her argument for a 10-0 court:

¶19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So. 3d 1249, 1252-53 (¶11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan [v. Dogan], 98 So. 3d [1115] at 1124 (¶20) [(Miss. Ct. App. 20120]. [My emphasis]

Let that sink in: The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. In other words, it’s up to you to make a record. The more thoroughly you do that the better equipped you will be on appeal.

A few other points to ponder (with links to some previous posts):

Comments on Bankruptcy and Equitable Distribution

August 8, 2017 § 3 Comments

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

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

Bankruptcy and Equitable Distribution

August 7, 2017 § 1 Comment

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

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

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

Making the Judge’s Job Easier: The Asset Table

July 19, 2017 § 5 Comments

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

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

It doesn’t have to be that way.

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

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

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

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

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

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

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

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

No Factors, No Affirmance

April 5, 2017 § 1 Comment

The COA’s March 21, 2017, decision in Sullivan v. Sullivan, is not going to have far-reaching impact on Mississippi law. It’s yet another in a long line of cases that reverses and remands because the chancellor’s findings did not address Ferguson and Armstrong factors. Not that big a deal, really.

Now, we don’t know much from the COA’s decision about what exactly happened in that particular case, but consider this scenario from a case in my court not long ago:

Husband’s attorney withdraws from the case, leaving him unrepresented in a case that had been pending nearly two years. When he appears for trial five months later, he asks for a continuance to get an attorney, which request is denied. The trial proceeds.

In the course of presenting proof on the issue of equitable distribution, the attorney for wife puts on proof as to only one Ferguson factor, a point I noted in my opinion, in which I nonetheless did effect an equitable distribution.

Husband timely filed a R59 motion asking for a do-over because I should have granted the continuance, which would have allowed husband to present an effective challenge to the equitable distribution.

I rejected his argument that I should have given him more time to get an attorney.

But … I felt that I had no choice but to grant the re-do as to the equitable distribution simply due to the paucity of the record as to any proof to support the Ferguson analysis. I am confident that, if I had rejected his argument and he appealed, the COA would have sent the case back for a more substantial record. So the husband will have assistance of counsel when the issue comes ’round again.

This could have been avoided had counsel for wife taken a little more time to get evidence into the record of as many of the Ferguson factors as applied.

Getting back to Sullivan, sometimes when I read these cases I wonder whether the fault was the chancellor’s or whether the fault lay in the cards that the judge was dealt.

Mother-in-Law’s Revenge

March 30, 2017 § Leave a comment

What happens when, after a divorce has been granted, the mother-in-law claims that some of the personal property awarded to the wife actually belonged to her (i.e., the mother-in-law)?

Well, one avenue she might pursue is a replevin.

And that is precisely what Mary Stevens did, in County Court, claiming that Ginger Grissom, her former daughter-in-law, was wrongfully holding some rings and knick-knacks belonging to her. Those things, however, had been awarded to Ginger in the divorce. The County Court ruled against Stevens, and she appealed to Circuit Court, which affirmed. Thence she appealed, and the COA affirmed in Stevens v. Grissom, handed down March 21, 2017.

The divorce case was actually mine. Although I don’t make it a habit to comment here about cases from my court, this is really a county court case, and the divorce is only tangentially related. Still, it’s interesting to note that the divorce was settled in mediation and the final judgment approved and incorporated the parties’ own property-settlement agreement that awarded those later-contested items to Grissom.

I found this interesting simply because I had never seen an action like this in the backwash of a divorce.

Who Pays the Cost of Expertise?

March 28, 2017 § 1 Comment

Stephen and Alaina Bullock separated in 2007, and were in divorce proceedings by 2008. When they finally appeared for trial in 2010, Alaina noted that she had yet to receive discovery responses (after around 3 years), but waived her right to them so as to get the matter over with. After a day of testimony, the chancellor realized he had a conflict and recused.

In July, 2011, the successor chancellor entered an order compelling Stephen to answer the discovery requests. On August 7, 2011, the chancellor entered an order appointing a forensic accountant to report on valuation of the parties’ rather extensive assets as of the date of the report, which he did on January 31, 2012. In reaction, Alaina hired her own forensic accountant, Levens, who produced a report that was “significantly broader in scope and detail than that of the court-appointed accountant,” including valuation of assets not mentioned by the court-appointed expert, the parties’ net worth, and final numbers.

In 2014, around six years into the pendency of the case, the parties appeared for trial, and Stephen asked for a continuance to answer the discovery that was now ready to enter first grade. The chancellor denied the request, and the trial commenced. Both experts testified. In his final ruling, among other things, the chancellor ordered Stephen to pay a large part of the fees charged by Alaina’s expert. Stephen appealed.

In the case of Bullock v. Bullock, handed down February 28, 2017, the COA affirmed on the assessment of expert cost. Judge Greenlee wrote for a unanimous court (Lee not participating):

¶24. Stephen asserts that the chancellor erred in assessing him half of Levens’s expert accounting fees. In Burnham-Steptoe v. Steptoe, 755 So. 2d 1225, 1236 (¶40) (Miss. Ct. App. 1999), this Court affirmed a chancellor’s refusal to require a husband to pay his wife’s accountant fees where a court-appointed accountant also testified, the wife’s expert based his calculations on the court-appointed accountant’s testimony, and the court could have derived the value of the asset based solely upon the court-appointed expert’s testimony. We have a different situation in the case at hand. Here, Alaina’s expert generated an independent report greater in scope than that of the court-appointed accountant, a report that included identifying genuine mistakes in the court-appointed accountant’s report as well as identifying the loan and investment that constitute the disputed marital assets on appeal. The chancellor stated that the two experts “supplemented” each other. Unlike in Steptoe, the contributions of Alaina’s expert were not entirely derivative and duplicative of the work done by the court-appointed accountant. The court relied on the combined work of the two experts, and the court’s determination on fees has Alaina and Stephen splitting the cost of both experts evenly. We also note that Stephen’s chronic resistance to meaningfully participating in discovery hampered both experts’ progress. We do not find that the chancellor abused his discretion in assessing Stephen half of Levens’s expert fees.

A few points to ponder:

  • If you’re going to hang your client with the extra expense of an expert in addition to the court-appointed expert, be sure that the expert is going to go above and beyond what the court-appointed one did. Merely to take what the court-appointed expert concluded and nick at the edges will only get your client minor relief at a dear price. Here, Levens was able to add substance that gave the chancellor a basis to go beyond what the court-appointed expert did.
  • It never ceases to amaze me how some lawyers cavalierly let their clients get months (and in this case, years) behind in discovery responses. Don’t they realize that they are asking for trouble? Do they think the chancellor is going to stand idly by, shrug her shoulders, and say, “Oh, well,” when confronted with a long-standing neglect to respond? At some point a price will be paid. Stephen paid it here.
  • It’s hard to imagine a case in which the parties are well-served by a six-year-divorce proceeding, followed by an appeal and a partial remand, which may well be followed by another appeal (not to mention the usual post-ruling motions at both appellate and trial levels). Not to say that I haven’t been involved in lengthy ones myself, but, honestly, if the lawyers can get the parties to answer discovery and do what needs to be done, the case can be brought to a merciful end.
  • Here’s a trick I learned from one of the all-time great Chancellors, John Clark Love of Kosciusco. When a party was overdue on discovery and the matter was brought to his attention on a motion to compel, he would inquire of the defaulting attorney, “How much time does your client need to file complete responses?” Invariably the lawyer would lowball the time, and Judge Love would encourage a realistic response. When a realistic date was finally arrived at, he would direct the prevailing attorney to prepare an order that would require the party to answer by that date, and for every day thereafter until the answers were filed, the defaulter would incur a $25 fine payable to the county. You can do the math; it doesn’t take very long for that to become a painful — and hopefully motivational — bite.

The Average Valuation Case

December 19, 2016 § 1 Comment

Three things are fundamental when it comes to equitable distribution:

  1. It’s incumbent on the chancellor to determine the fair market value of the assets before determining division; and
  2. It’s up to the parties to offer evidence of the values; and
  3. It’s up to the chancellor to determine the weight and credibility of the evidence.

When Chad and Catherine Potts showed up in court for their divorce in 2015, one item at issue was equitable division of the former marital residence and 40 acres of land. There was no dispute that the property was marital. Catherine presented a 2011 appraisal that valued the property at $138,000, and Chad offered an eight-month-old 2014 appraisal placing the value at $86,000. After quizzing Chad over the discrepancy between the two valuations, the chancellor averaged the two and determined the value to be $112,000.

Dissatisfied, Chad appealed, contending that the judge should have adopted his more recent value. On November 22, 2016, in Potts v. Potts, the COA affirmed. Judge Irving wrote for the unanimous court:

¶8. “Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Pursuant to Ferguson, Chad argues that the chancellor should have relied solely on the appraisal he submitted to the court because it was more recent and, therefore, a more accurate determination of the fair market value of the property at the time of the divorce. He asserts that the chancellor erred by applying an average of both appraisals that were submitted to the court rather than simply applying the most current appraised market value of the property.

¶9. Catherine responds that the chancellor was not in error in determining the value of the marital home and land by averaging the appraisals submitted by the parties. She argues that Chad’s appraisal showed a $52,000 reduction in the fair market value of the property, and no evidence was presented to the court explaining the reduction in value. In addition, she argues that the overall award in the case was fair, reasonable, and equitable.

¶10. “A chancellor is responsible for determining the fair market value of the marital assets.” McKnight v. McKnight, 951 So. 2d 594, 596 (¶6) (Miss. Ct. App. 2007). It appears that the chancellor found it disturbing that the property had lost a considerable amount of its value and he attempted to obtain an explanation to assist in the determination of the property’s fair market value. The chancellor addressed this issue during the proceedings with Chad as follows:

Chancellor: Property values are about the same now as they were three or four years ago?

Chad: Yes, sir.

* * * *

Chancellor: Have you taken away a lot of the improvements to the property in the past few years?

Chad: Taken away? What do you mean?

Chancellor: Are they gone from what they were from, say, 2009 until 2014? Have a bunch of the improvements been gone?

Chad: No, I haven’t.

Chancellor: Are they deteriorated very much, or have you kept them up pretty well?

Chad: Yes, sir, I have.

¶11. There was no evidence offered to support the reduction in value as both appraisals were conducted by the same entity. In addition, Chad testified that the property values were about the same as they were at the time of Catherine’s appraisal, that no improvements had been removed, and that the property had not deteriorated. “To the extent that the evidence on which [a] chancellor base[s] his opinion [is] less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Williams v. Williams, 129 So. 3d 233, 241 (¶31) (Miss. Ct. App. 2013) (citation omitted). Chad failed to give a reasonable explanation for the diminishment in the value of the property from 2011 to 2014, even though property values generally had remained steady. The appraisals were the only evidence submitted to the chancellor to determine the value of the property. As stated, there was a considerable difference in the value arrived at by the two appraisals with no apparent explanation for the difference. The chancellor split the difference, as in his discretion he was permitted to do, to arrive at a reasonable value. McKnight, 951 So. 2d at 596 (¶7). After reviewing the record, we find nothing to suggest that the chancellor abused his discretion. This issue is without merit.

The chancellor actually did Chad a favor by giving him the opportunity to explain why his value of the property had decreased as much as he claimed in the period between the two appraisals. As you can see, Chad didn’t do much to help his cause. By the way, MRE 614 specifically allows the judge to examine any witnesses, and even to call witnesses herself. In this case, I think the appellate result would have been exactly the same whether or not the judge asked any questions.

It’s ingrained in our law that the chancellor may average values when presented with competing valuations. If you want to have a basis to challenge averaging, you have to put some evidence in the record as to why your client’s valuation is the more credible. For instance, had Chad called one or both of the appraisers to testify, that may have produced a different result. In the absence of that testimony, he may perhaps have been able to explain some deterioration of the property or some other factor affecting value negatively. Absence of that kind of proof left a vacuum which the chancellor filled with an average. And it deprived Chad of much to argue on appeal.


Periodic or Lump-sum?

June 22, 2016 § Leave a comment

When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:

“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”

Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.

Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.

In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.

Some observations:

  • Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
  • As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
  • In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
  • Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
  • As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?


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