Pleading | The Better Chancery Practice Blog

JUDGE CARLTON’S PRIMER ON ADVERSE POSSESSION

March 28, 2012 § 1 Comment

To establish adverse possession requires proof by clear and convincing evidence of some rather elusive concepts established by the courts to interpret and apply MCA § 15-1-13. That’s why, whenever I find an exposition on the applicable law, I’m quick to share it so that you can use it.

The most recent useful primer on the subject is Judge Carlton’s opinion in the COA case of Greenwood v. Young, decided February 7, 2012. I’ve stripped out the law to provide you with a skinny you may want to add to your trial notebooks:

¶19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in part:

“Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.

In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Pulliam v. Bowen, 54 So. 3d, 331, 334 (¶13) (citations omitted).

The factors:

Claim of Ownership. ¶21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citations omitted).

Actual or Hostile. ¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So. 3d at 431-32 (¶23).

Open, Notorious, and Visible. ¶26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Id.

Continuous and Uninterrupted for Ten Years.

Exclusive. ¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So. 3d at 432 (¶27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’” Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 (¶25) (Miss. Ct. App. 2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id.

Peaceful. ¶30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶17) (Miss. Ct. App. 2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So. 3d at 432 (¶29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id.

Clear and Convinving Evidence. The mere fact that there is contradictory evidence does not mean that the credible evidence is not clear and convincing. See, Stancil v. Farris, 60 So. 3d 817, 824 (¶14) (Miss. Ct. App. 2011) “If clear[-]and[-]convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear and convincing evidence could be proven. Such is clearly not the case.”

You should read the opinion carefully to see how the chancellor applied the law to the facs, and how the COA viewed the chancellor’s ruling. Your case may be distinguishable.

Another adverse possession post highlighting a COA ruling by Judge Roberts is here.

You can find an annotated checklist of adverse possession factors by following the link.

The latest COA case on adverse possession is Massey v. Lambert, decided March 27, 2012, in which the court upheld the chancellor’s ruling that the use of the property had been permissive, which defeats a claim of adverse possession.

THE HIGH PRICE OF A LITIGATION MISFIRE

March 19, 2012 § Leave a comment

Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point 2. A case that blows up in one’s face. 3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.

We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.

In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:

“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.

¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”

You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.

It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:

The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.

The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.

Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”

MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.

The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”

A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.

In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.

MAKING CHILD SUPPORT RETROACTIVE

March 13, 2012 § Leave a comment

Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.

That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.

In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:

“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]

The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:

“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”

It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.

Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.

AMENDING BY THE BOOK

February 15, 2012 § 2 Comments

Things seem to go in phases. A motion to do thus and such is filed, finds some success, and a slew of others follow. Or a court of appeals decision makes a point, and a salvo of pleadings ensue.

Lately, a phase in pleadings is for lawyers to file successive so-called “amended” or “supplemental” pleadings and answers thereto, along with counterclaims (bearing all manner of names, such as “counter-motions,” “cross-complaints,” “counterpetitions,” etc., etc., etc.), and responses thereto, to the extent that casting the pleadings for trial is like assembling a jigsaw puzzle. Nearly always, this plethora of pleadings is filed in a willy-nilly cascade of paperwork without any leave of or input by the court. It does not have to be, nor should it be, this way.

MRCP 15 lays out an orderly process for amendments that is fairly simple if followed. Here’s the simple scheme laid out in Rule 15(a):

You may amend at any time, without leave of court, before an answer is served.
If your pleading is one to which no answer is permitted, you may amend without leave of court at any time within 30 days after service of process, unless the matter has been placed on the trial calendar.
Any other amendment will require leave of court, with notice to the other side and opportunity to be heard, OR written consent of the adverse party or parties.

It’s really that simple. There are some other interesting wrinkles in Rule 15, and we’ll touch on them, but the important thing to remember is that if your pleadings don’t meet the criteria in 1 and 2 above, you must file a motion and get permission of the court to amend or get an agreed order. Note that the rule requires “written consent.” I take that to mean an agreed order of the court, not a handshake deal that is later the subject of heated dispute.

An important caveat: Rule 15 specifically says that leave to amend shall be freely given. Don’t confuse that principle with freely amending without leave of court.

The importance of following the requirements of Rule 15(a) is illustrated by what happened in Lone Star Industries, et al. v. McGraw, decided February 2, 2012. In that case, the Mississippi Supreme Court held that the circuit judge should have dismissed a second amended complaint for failure of the plaintiff to get leave of court before filing it. As a result, some plaintiffs were dismissed from the suit, and the statute of limitations (SOL) has likely run.

You can have a similarly unpleasant result in chancery, although we seldom deal with SOL. Imagine that you have unilaterally updated your modification pleadings 10 days before trial to bring up some claims that surfaced in discovery, only to face an objection at trial that you did not comply with Rule 15. The judge should sustain the objection and throw out your updated claims. In a modification case, that could be significant to your client, because the judgment that results from this trial will time bar any later claims based on acts that precede it.

So, how do you successfully update your pleadings to capture transactions, occurrences or events related to the original claim that occurred after the filing of the original pleadding? You file a motion pursuant to Rule 15(d). If you can’t get the other side to agree via an agreed court order, you should call your motion to amend up for hearing right away, because the judge can deny your request if to grant it would prejudice the other party, as, for instance where you wait until immediately before or the day of trial.

Rule 15(b) says that even if you have not amended, you may be able to get your amendment anyway if you present evidence that is outside the scope of the pleadings at trial and the other side does not object. The court in such a case may allow the pleadings to be amended to conform to the proof. That’s the subject of a post to come later.

Amendments relate back to the date of filing of the original pleading, if they arise out of the same conduct, transaction or occurrence set forth “or attempted to be set forth” in the original pleading. That’s what Rule 15(c) provides, and it has some important language about adding parties.

Sloppy amendment practice makes a mess out of litigation. Recently I delayed a trial and ordered the parties to file updated, consolidated pleadings where there was a train of pleadings extending back to 2008, with petitions, counterclaims, responses and answers to responses of such byzantine proportions that I could not discern what were the issues in the case. I suspect that when the case bubbles back up, many of the issues will have fallen by the wayside, and we will have a streamlined, current, sensible package of issues for adjudication. Or at least that’s what I’m hoping.

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.

_______________

* “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.

HELPFUL HINTS FOR ATTORNEY’S FEES IN ESTATES

January 12, 2012 § 1 Comment

If you want to get paid in probate matters, you have got to give the judge the information he or she needs to make an award.

UCCR 6.12 says that you have to provide the court with all the information required in UCCR 6.11, and ” … the nature and effect thereof.” The information required in 6.11 is ” … the nature and extent of the service rendered and expense incurred … ” Fees may not be based on the value of any real property.

The factors that the court must consider in determining what is a reasonable attorney’s fee in an estate or probate matter are discussed in this earlier post.

I will not rule on attorney’s fees in a probate matter unless the attorney has given the interested parties notice of what the amount of fees requested is and what services were rendered. After all, the heirs, beneficiaries or ward are paying out of their own pockets, so they should have some say.

Here are some helpful hints to do it right:

Make an itemized statement showing the date you performed each service, the nature of the service, and the amount of time spent. An entry might read: 1-22-12 Preparation of Letters Testamentary 1/4 Hr.
If there is no dispute about your fee, either attach the itemized statement as an exhibit to your pleading to close the estate, or incorporate it into the pleading itself. That way, when the interested parties join in or sign it they are documenting that they agree with the fee. Include a statement to the effect that ” … based on the [itemized statement], petitioners agree that a reasonable fee is $ ______.”
If there is not agreement about the fee, spell out in the petition to close the estate that there is a dispute as to the fee, and set it for hearing.

If your fee is based on a contingent fee contract for wrongful death or some other claim of the estate, remember that UCCR 6.12 requires that your contract must be approved in advance, and that the ultimate award will be ” … such sum as will be reasonable compensation for the service rendered and expense incurred … ” Your claim for fees must set out (1) the total amount recovered, (2) the nature and extent of the service rendered and expense incurred by the attorney, and (3) the amount, if any, offered to settle before the attorney was hired.

To get an idea of the breadth of the chancellor’s discretion in awarding attorney’s fees in an estate, read In re Estate of McCullough, 58 So.3d 701 (Miss. App. 2009) in which the COA upheld the chancellor’s award of only $36,660 where the attorney had sought $88,550. A similar result was upheld in Barnes, Broom, Dallas & McCleod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1213 (Miss. App. 2008).

Attorney’s fees are the personal obligation of the fiduciary, but where the attorney’s services have benefited the estate, the fees may be paid out of the estate; conversely, if the attorney’s services have not benefited the estate, the estate should not have to bear the expense. Estate of Collins v. Collins, 742 So.2d 147, 148 (Miss.App. 1999).

PLEADINGS AND THE PROOF

November 1, 2011 § 2 Comments

“It is the pleading that makes the case for adjudication, and it is the evidence that sustains or defeats it upon the final hearing.” Terry v. Jones, 44 Miss. 540, 1871 WL 8413 (1871).

Voilà! After 140 years and a sea-change in the rules of Mississippi pleading, that ancient formula holds oh-so true in our courts. The pleadings frame the issues; the evidence admitted at trial determines the outcome.

Put another way: THE PLEADINGS ARE NOT EVIDENCE.

This immutable principle has not only for ages been a bedrock of procedure in Mississippi courts, it has also been the rock that has dashed the case of many an unseasoned or unwary practitioner.

Don’t ever assume because you have pled something that the court will take it as true. On the contrary, without actual evidence in the record, the court can not take it as true, whether it wants to or not.

I have seen lawyers leave key elements of their cases lying on the court room floor simply because they neglected to offer proof thereof. This is a chronic problem when it comes to claims for attorney’s fees, but the problem is not limited to that issue. I see Rule 59 motions more frequently than I’d like where the motion claims I “overlooked” a point, but the attorney concedes that the witness never testified about the matter. I should grant the motion, the lawyer pleads, because it was, after all, in the pleadings.

Here’s the deal: If you don’t include a properly-pled issue in your pleadings, the court can not consider it. BUT, just because it is in your pleadings does not mean it is established; you still have to put on evidence in support of it.

ADOPTION DECREE DO’S AND DON’TS

October 11, 2011 § 1 Comment

Before you draft your adoption final decree, be sure to read MCA §§ 93-17-13 and 29. There are some critical provisions in those statutes that you need to address.

Here are the highlights of 93-17-13:

DO include in your judgment a six-month interlocutory period unless the child to be adopted is the stepchild of a petitioner or is related to a petitioner by blood within the third degree, unless the chancellor has determined that the interlocutory period is not necessary for the benefit of the court; if the judge does waive the interlocutory period, DO include language in your final judgment that the interlocutory period is waived and the reason why.
If the chancellor shortens the interlocutory period by the length of time that the child has lived with the adoptive parent in their residence, DO include that explanation in your judgment.
DO include in your judgment that that the child shall (a) inherit from and through the adoptive parents and siblings as would a child of the full blood. The language of the statute is explicit, and you should track it verbatim.
DO specify in your judgment that the child, adoptive parent(s) and kin are all vested with all of the rights and responsibilities as if the child had been born to the adoptive parents as their natural child. Again, the language of the statute is explicit, and you would do well to copy it verbatim into your judgment.
DO adjudicate in the body of the decree that the name of the child is changed, if desired.

And here are the highlights of 93-17-29:

DON’T state the name of the natural parent or parents in the style of the case or where they can be spread on the minutes of the court.
DON’T state the name of the natural parent or parents in your final decree.
DON’T state the original name of the child or children in the style of the case. Use “the child named herein,” or “a minor child,” or words to that effect.
DON’T state the original name of the child or children in the decree unless the name of the child will be unchanged.

Section 29 addresses confidentiality issues. Use your common sense. Any confidential information that you add to the style of your case will find its way into the docket entry and even into a publication notice. “Confidential information” in the sense of adoption embraces any information that will identify the child by original name, or that identifies either or both of the natural parents. I have seen publication notices that are blatant violations of this code section. Once that kind of improper publication is made, confidentiality for all intents and purposes is eliminated. If you have any doubts about how to style your case to avoid these problems, sit down with your chancellor and hash it out before you file your pleadings.

Some lawyers ask how to accomplish an adjudication of termination of parental rights without naming the terminated parent(s) in the final decree. Two methods come to mind: (1) enter a separate judgment specifically terminating the parental rights and reference that judgment in your final decree with language like “The parental rights of the natural parents were terminated by separate judgment in this action rendered March 16, 2011, which is incorporated herein by reference for all purposes;” or (2) in the final decree, simply state that the rights of the natural parents identified in the Complaint for Adoption are hereby terminated, etc.

I heard a report from another district that the State Board of Health is requiring that the name of the parent or parents whose rights are terminated must be included in the decree. If so, that agency is requiring by its directives a violation of the statute. Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.

THE INFORMAL CUSTODY ARRANGEMENT AND ITS IMPACT ON PERMANENT CUSTODY

September 26, 2011 § 3 Comments

I talked here before about the Varner case, which holds that a child-support-paying parent (the father in that case) who has a child come to live with him may receive a credit against unpaid child support for that de facto custodial time. In Varner, the mother had court-ordered custody, but the parties made a handshake deal for the child to go and live with the father for a time.

Taking a similar set of facts, would the father have a basis to ask the court to modify custody?

In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the father had the son with him for 16 months because of the mother’s unsettled living situation. The mother had asked the father to take the boy until she could get settled. When she did get into a stable situation, she asked the father to return the child to her custody. When he refused, she picked the child up from school, enrolled him in a new school, and resumed full-time custody of the son. The father filed a modification action, and the chancellor granted him custody due to the 16-month period.

On appeal, the MSSC recited the familiar material change-adverse effect-best interest test for changing custody. Applying that test to the facts of the case, the court said (at 100):

“To her credit, when she fell upon hard times, appellant called the child’s father for help. The custody was temporarily interrupted because of conditions over which she had no control. When she stabilized the situation, she asked appellee to restore custody to her and he declined. The parties’ act, in temporarily modifying the decree, was not binding on the court. The only change in circumstances, upon which the appellant can rely, and which the court accepted, was the fact that the father had custody for sixteen moths while the appellant, the mother, had liberal visitation withh the child.

Simply, the facts of this case do not reflect a material change in the circumstances of the parties and the child, which adversely affected [the child], to the extent that his custody should be changed from appellant to appellee.”

A lot of water has flowed under the bridge in the 21 years since this case was decided, but I believe it is still good law for the above points, and it has never been overruled or criticized. There are, however, two wrinkles:

At page 100, there is this statement: “The courts do not favor separating siblings when their parents divorce.” That concept has been refined since then to provide that, although separation is not favored, there is no hard and fast rule about separation, but it is one of many factors to be considered by the court among the Albright factors for determination of best interest. See, for example, Kimbrough v. Kimbrough, decided by the COA May 3, 2011.
And on the same page is the statement that the facts of the case did not reflect material change-adverse effect-best interest, and “Neither did the motion so charge nor the chancellor so find.” As we’ve discussed before, the law now is that if you fail to plead the elements of custody modification, your case is subject to being dismissed for failure to state a claim upon which relief can be granted.

DISESTABLISHING PARENTAGE, STEP BY STEP

September 20, 2011 § 5 Comments

As I posted here before, the legislature has adopted a procedure to disestablish parentage (paternity) in light of Williams v. Williams, 843 So.2d 720 (Miss. 2003), and its progeny, which hold that a man who is determined by DNA testing not to be the father of a child should not continue to be responsible for the support of that child.

The new code section, MCA § 93-9-10, went into effect July 1, 2011. The very first sentence of the statute states that “This section establishes the circumstances under which a legal father may disestablish paternity and terminate child support when the father is not the biological father of the child.” In my opinion, this code section is now the exclusive remedy for a father in these circumstances. Any proceeding such as a petition to remove the father from the birth certificate, or a joint petition to disestablish paternity, or a modification pleading that does not meet the requirements of the statute will be ineffective.

You may well ask, “But if the father and mother agree, what is the harm? Why not simply approve their agreement?” First of all, there are the welfare and rights of the child to consider. See, Kelly v. Day, 965 So.2d 749 (Miss. App. 2007). And secondly, if the procedure is ineffective, the child will have a later cause of action for support, making the whole earlier procedure a waste of time.

Before I step through the statute with you, please let me urge you to read the statute. I swear, it won’t take more than five minutes. If you’re going to advise clients about this, you need to be familiar with what it says.

So here is the procedure, step by step (statutory requirements in bold, my comments in regular font):

The father must file a petition in the court having jurisdiction over the child support obligation. This means that if the county court, or chancery court in another county, has entered a child support order, the petition must be filed in that court.
Process and a copy of the petition must be served on the other parent or guardian; if DHS is or has been a party to the paternity action or collection of child support, the Attorney General of the State of Mississippi must be served with process. In my opinion, since this action is under the chapter dealing with parentage (bastardy), 30-day process would be required pursuant to MRCP 81 (d)(1).
The petition must include: (a) an affidavit executed by the petitioner that he or she (there is nothing in the statute that says that the mother is precluded from filing a petition) has newly-discovered evidence since the paternity determination relating to parentage of the child, and (b) the results of a genetic or other scientific parentage test administered within one year of the filing of the petition excluding the legal father as biological father of the child or an affidavit executed by the petitioner that he did not have access to the child for testing before the filing of the petition; in the latter case, the petitioner may request that the mother (if available), child and father submit to such testing.
The court shall grant the relief on a properly filed petition if the court finds all of the following: (a) There is newly-discovered evidence as averred; (b) the scientific testing was properly conducted; (c) the legal father has not adopted the child; (d) the child was not conceived by artificial insemination while the legal father and mother were married; (e) the legal father did not prevent the biological father from asserting his parental rights with respect to the child. I recommend that your petition include allegations (a) through (e). Your client is swearing that all of these statements are true, and you are vouching under MRCP 11 (a) that the pleading has “good ground to support it.” And make sure your client reads it before signing. He is swearing all of this is true, andd if he balks or hems and haws, you might want to think about going back to the drawing board.
The court shall not set aside the paternity determination or child support order if the court finds that the legal father did any of the following: (a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father; (b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact; (c) signed a stipulated agreement of paternity that has been approved by order of the court; (d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father; (e) been named as legal father or ordered to pay support after he declined to undergo genetic testing; or (f) failed to appear for a genetic testing draw pursuant to a valid court order. Same advice here about incorporating these as allegations in your petition. Make your client swear that he has not done any of the foregoing. The rationale above applies here.
If the petitioner does not make the required showing, the court shall deny the petition.
Relief is limited to prospective (future) child support, past-due child support payments, termination of parental rights, custody and visitation. The statute does not create a cause of action to recover child support paid before filing of the petition. The statutory procedure can not be used to litigate previously-paid child support. It can be used to address past-due child support, parental rights, custody and visitation.
The court may not suspend the child support obligation while the petition is pending, although the court may order that such payments may be held by the court or DHS pending a final determination. My suggestion is to plead for the court or DHS to hold the child support funds pending litigation, if that is what your client wants. If you don’t specifically ask in your petition for that relief, you likely will not get it.
The party requesting genetic testing shall pay its fees. There is no provision in the statute for the court to tax the fees other than to the party who requests it.
The usual authority of the court on motion or its own motion to order the parties to submit to genetic testing applies.
The unsuccessful petitioner shall be assessed with court costs, genetic testing fees and reasonable attorney’s fees. Here’s the reason why I suggested above that you specifically plead all of those qualifying and possibly disqualifying facts and make your client read carefully before signing. Clients sometimes will lead you to believe that they have a case, and will omit some important detail, like the execution of that acknowledgment of paternity. They think they can pull a fast one on the court, or that it somehow will slip by unnoticed. The result of failure for the petitioner is being assessed with some significant expenses. The result for you is egg on your face and slipping a notch in the court’s regard of your own credibility.

This statute should go a long way toward eliminating the welter of approaches that lawyers have taken to address the disestablishment of paternity. Now there is a single statutory provision. Read the statute, follow it, and you might accomplish something for your client.

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