RULE 81 CLAIMS ANOTHER VICTIM
August 14, 2012 § 5 Comments
There are judges and lawyers who absolutely hate MRCP 81. I don’t know of anyone who really loves it. Most who don’t hate it just try to operate within its bounds, as they understand it, and go about their business.
There is a vast graveyard of legal shipwrecks on the shoals of Rule 81. The latest took a not unfamiliar, if long-delayed, route to disaster.
To make a long story short, the plaintiff filed a petition for partition in 2005, and issued MRCP 81 summons for the defendants. Some kind of proceeding took place in July after the defendants had been served, but no order was entered and no other action taken of record.
Five years later, with a different chancellor on the bench, the plaintiff awoke to the fact that the case was sitting idle. Realizing that one necessary defendant had never been served with process, the plaintiff issued process for her. She appeared in response, and the case was continued to a later date. When neither she nor any of the other defendants appeared on the later date the chancellor entered a judgment granting the plaintiff the relief he requested, a partition by sale.
The defendants filed an MRCP 59 motion arguing against the partition by sale, and complaining that they were not properly served with process. The chancellor overruled the motion, and the defendants appealed.
In Brown, et al. v. Tate, rendered August 7, 2012, the COA reversed and remanded the case because no order had been entered continuing the hearing on the the 2005 summons.
Here are a few learning points from the case you might want to consider:
- If you continue your hearing, for whatever reason, from the date set in the MRCP 81 summons, be sure that you obtain an order of the court dated the day set for hearing in the summons, continuing it to another day certain. If you fail to do this, your process is dead, and you will have to start over.
- If one or more defendants show up on the day set in the summons, make sure they sign off on your order of continuance, and make sure you give them a copy of the order.
- Instead of just reciting that the case is continued to another day, include the following information in your order: (1) that all defendants were called in the courtroom and in the corridors of the court house; (2) name the defendants who did appear; (3) name the defendants who did not appear; (4) describe what actions were taken in court, if any; (5) the date, time, and place of the next hearing; (6) a statement that each defendant who appeared was provided with a copy of the order and that each understands that a judgment may be entered against them if thhey fail to appear at the next hearing; and (7) the signature of each defendant who appeared.
- Ask the judge to add, in the continuation order, a requirement that each defendant file an answer before the date set for the continuation hearing. An answer to a Rule 81 matter is not required by the rules, but MRCP 81(d)(4) permits the court to require an answer ” … if it deems it necessary to properly develop the issues.” And “A party who fails to file an answer after being required to do so shall not be permitted to present evidence on his behalf.” By including the requirement for an answer in your continuance order, you are effectively setting up a default situation for those who do not answer.
This particular case is one that fell through the cracks and should have been scuttled by an MRCP 41(d) notice years before it resurrected itself. The doltish chancellor should have made that plaintiff’s lawyer start over when he came before the court with that old file. Oh, and lest you think I am being too harsh in referring to that judge as doltish, that judge was I.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3
August 9, 2012 § Leave a comment
This is the eighth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #3 …
Use the trial checklists as your template for proof.
Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.
The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”
If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.
How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.
A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.
Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.
As you will see, there are checklists for various issues. Use them and win.
When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.
STUNG BY ATTORNEY’S FEES
August 7, 2012 § 2 Comments
The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.
The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.
The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:
¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:
There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).
See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).
¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”
¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).
¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.
The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
DISMISSAL FOR FAILURE TO PROSECUTE
August 6, 2012 § Leave a comment
MRCP 41(b) says, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Except for a few circumstances spelled out in the rule, such a dismissal operates as an adjudication on the merits, which means that it is with prejudice and res judicata.
In the COA case of Wing v. Wing, decided July 17, 2012, the court upheld a chancellor’s decision dismissing an action for failure to prosecute.
At the trial level, a conservatorship had been established for Loleta Wing in 2005, on petition of Todd and Tammy Kinney, grandchildren of Loleta. As part of their action, they sued Loleta’s son, Jimmy Wing, who was co-trustee and a co-beneficiary of a Wing family trust, for accounting, claiming he had abused his confidential relationship with Loleta. A couple of months later they dismissed the suit.
After Loleta died in November, 2007, Jimmy submitted an accounting to Todd and Tammy for the remaining trust assets. They responded with a suit in February, 2008, charging that Jimmy had used his confidential relationship with Loleta to persuade her to transfer assets to him, and that he improperly used the trust for his own benefit. They also sought an injunction, and after a hearing, the court, on February 28, 2008, froze all assets of the trust.
Jimmy filed responsive pleadings, and the parties entered into an agreed preliminary injunction. There ensued informal exchanges of information and an informal accounting by Jimmy, until December 21, 2010, when Jimmy filed a motion to dismiss for failure to prosecute. The chancellor dismissed the action pursuant to MRCP 41(b), and Todd and Tammy appealed.
Writing for the court, Judge Carlton said:
¶14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiff’s failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So. 3d 721, 728 (¶22) (Miss. 2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiff’s conduct is dilatory focuses “on the plaintiff’s conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). [Fn 7] Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So. 2d at 880 (¶50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.
Fn 7. See also Holder v. Orange Grove 7 Med. Specialties, P.A., 54 So. 3d 192, 198 (¶22) (Miss. 2010) (“We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).
The court considered whether the trial judge had abused his discretion, and whether lesser sanctions would have been appropriate, and rejected both arguments. The COA’s analysis of the factors applicable in deciding whether there has been a failure to prosecute is something you should take the time to read.
Many family law cases seem to get onto a side track and fall into inaction. When they involve the best interest of children it’s not likely that the trial court would consider dismissal, but, as Wing points out, there are lesser sanctions for failure to move your case forward that can impact your client’s and even your pocketbook, as well as your ability to be effective in representing your client.
I use scheduling orders in all contested cases to move things along, and I impose an expiration date on temporary orders as an incentive not to dawdle with divorces. I suppose that “for failure of the plaintiff to comply with … any order of the court …” such as a scheduling order, a plaintiff could jeopardize his or her case by inaction.
Wing is a case you need to read, not only to understand your own duty to move your cases forward, but also to see how you can use MRCP 41(b) as a defensive weapon. Remember, that dismissal is with prejudice, by the express terms of the rule.
While we’re talking about dismissals, remember that if you receive a clerk’s notice of dismissal for inactivity in excess of a year, per MRCP 41(d), you need to take substantive action immediately, or else your case will be dismissed. A letter to the clerk or a “Notice to Keep Case on Active Docket” or the like just won’t cut it.
DEFINING THE SCOPE OF TRIM
August 1, 2012 § 2 Comments
You’ve read here before about the case of Trim v. Trim and its ramifications for family law practitioners. Trim is the MSSC case holding that intentional filing of a substantially false UCCR 8.05 financial statement constitutes a fraud on the court, so that any judgment based on it is vulnerable to being set aside any time.
In the case of Rogers v. Rogers, decided July 24, 2012, the COA confronted the question of intentionality and exactly how substantial the falsehood needs to be to warrant setting aside the prior judgment.
At trial in 2009, Charles Rogers submitted a financial statement that showed his monthly adjusted gross income as $4,651.71. The court awarded child support and alimony based on that figure.
Later, in a 2010 contempt proceeding brought by his ex-wife Julianne, Charles disclosed in discovery that his gross income was in excess of $88,000 a year, which would produce considerably greater adjusted gross income.
The chancellor found that the discrepancy was “proof of a gross misrepresentation and fraud” upon the court, and revised the final judgment of divorce to increase both the child support and alimony.
On appeal, the COA noted that in his 2009 trial testimony Charles had expressly testified that his yearly gross income was $88,000, that the $4,400 figure represented two weeks’ pay, and he had been asked about it in detail both on direct and under cross examination. At the contempt trial, Charles steadfastly stood by his position that he had not intentionally failed to disclose or falsified the financial information.
Judge Carlton recited the well-known Mississippi rule on establishing the elements of fraud:
¶18. The general rule is well settled that fraud will not be presumed but must be affirmatively proven. Taft v. Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (Miss. 1965). The Mississippi Supreme Court has held that in order to establish fraud, the burden is on the proponent to prove the following elements:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.
Koury v. Ready, 911 So. 2d 441, 445 (¶13) (Miss. 2005) (citing Mabus v. St. James Episcopal Church, 884 So. 2d 747, 762 (¶32) (Miss. 2004)). Additionally, “fraud . . . must be proved with clear and convincing evidence.” Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977). We have recognized that “[c]lear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005) (citation omitted).
¶19. To vacate a decree due to fraud, the supreme court, in Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992), listed the four necessary requirements that must be met:
(1) that the facts constituting the fraud, accident, mistake[,] or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.
Applying the law of fraud to the case at hand, Judge Carlton concluded that the elements of fraud had not been proven, and that the chancellor’s judgment essentially setting aside the original judgment was, therefore, in error. Her opinion distinguished Trim in this way:
¶24. Julianne cites Trim v. Trim, 33 So. 3d 471 (Miss. 2010), in support of her argument that Charles’s inaccurate Rule 8.05 statement perpetrated a fraud upon the court. In Trim, George Trim submitted his Rule 8.05 statement listing the value of his company’s stock at $100,000. Id. at 473 (¶4). George and his ex-wife, Lisa, entered into a property-settlement agreement, which the chancellor later ratified, based on their assets and liabilities disclosed in their Rule 8.05 statements. Id. Lisa later discovered that George had misrepresented his stock value in his Rule 8.05 statement, and filed suit against him for fraudulent misrepresentation. Lisa’s expert valued George’s stock at $694,000 at the time of George and Lisa’s divorce. Id. at 474 (¶4). On appeal, the Trim court held that George’s intentional filing of a substantially false Rule 8.05 statement constitutes a fraud on the court, noting the chancellor’s finding that George’s Rule 8.05 statement drastically undervalued a major marital asset. Id. at 478 (¶17).
¶25. The case before us differs from Trim in that the record shows that Charles testified during trial and explained that his Rule 8.05 submission reflected a two-week pay period. In applying the standard for proving fraud to the facts and record before us, we cannot agree that Julianne met her burden of proving fraud by clear and convincing evidence. See Hamilton, 352 So. 2d at 831. Although Charles’s Rule 8.05 statement incorrectly reflected his monthly salary, the record shows that he explained the discrepancy several times in his trial testimony. As a result, we find that the chancellor erred in considering Charles’s Rule 8.05 statement only, and not also his trial testimony, in determining that Charles’s misrepresentation of his income rose to the level of fraud. In her July 6, 2010 judgment, the chancellor erroneously found that Julianne proved by clear and convincing evidence that Charles perpetrated a fraud upon the court. Therefore, the chancellor erred in vacating the prior decree and revising the final divorce decree by increasing the alimony award. Accordingly, we reverse and set aside the revised final judgment and reinstate the original divorce decree. We also reverse and render the increased award of $1,000 in rehabilitative alimony for thirty-six months, which was based upon the erroneous finding of fraud on the court. Since the record does not support a finding of fraud by clear and convincing evidence, we reinstate the chancellor’s original divorce decree. See Manning, 594 So. 2d at 1167; Shaeffer v. Shaeffer, 370 So. 2d 240, 242 (Miss. 1979).
So, unless and until the MSSC chooses to clarify the matter further, you will have to prove all of the elements of fraud by clear and convincing evidence in order to invoke Trim relief. Proof of discrepancies and oversights in 8.05 statements will not be enough to do the job.
DEVIOUS SEARCH AND INQUIRY
July 26, 2012 § 3 Comments
It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.
In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.
It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.
The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.
The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:
Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.
“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.
Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.
The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.
Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.
In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #4
July 19, 2012 § Leave a comment
This is the seventh in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #4 …
Make sure you have enough copies of exhibits to comply with UCCR 3.05.
Read and follow UCCR 3.05. It requires that you have a copy of each exhibit for the court and opposing counsel. And remember that if you take the original exhibit away from the judge to have the witness use it, the judge has no clue what you are asking the witness about. So have an extra copy of the exhibit for the witness.
Some lawyers go an extra step and provide the court with a “mark-up” copy of the financial statements so that the judge can make notes directly on a copy of the exhibit during examination of the witness. That’s a useful idea.
Rule 3.05 is merely a manifestation of the golden rule of chancery court, which is “The easier you make the judge’s job, the more likely it is you will prevail.”
FIVE MISTAKES THAT FIDUCIARIES MAKE
July 18, 2012 § 7 Comments
- Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
- Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
- Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
- Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
- Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.
THE POINT OF NO RETURN
July 10, 2012 § 3 Comments
We all know the familiar Ferguson approach to equitable distribution: First classify the assets as marital or non-marital; then value them; then divide them equitably (not necessarily equally).
An often-ignored aspect of Ferguson analysis is the demarcation date that the court should use in classifying property as marital or non-marital. It’s important, because the date selected may decide the category where the item is placed. And I say it is often ignored because you seldom hear either side say anything about it in the presentation of the trial.
In Goodwin v. Goodwin, 758 So.2d 384, 386 (Miss. 1999), the MSSC laid down the rule that entry of a separate maintenance order stops accumulation of marital interests in property, and creates a “point of demarcation” to be used by the courts in determining marital vs. separate interests when division ultimately comes before the court. In Goodwin, that portion of the husband’s retirement account accumulated after entry of the separate maintenance order was his separate property, not subject to equitable division.
The line of demarcation rule was extended to temporary orders in the case of Pittman v. Pittman, 791 So.2d 857, 863-64 (Miss.App. 2001). In that case, the court noted that temporary orders, like separate maintenance orders, are simply recognition that the parties have ceased living together as husband and wife; in other words, they have reached the point of no return (at least until reconciliation in good faith in the case of separate maintenance). So interests that accrue after its entry are separate interests.
Both Goodwin and Pittman set out a bright line for the trial courts. But that bright line is there in cases where there has been a separate maintenance or temporary order in the case. What about cases where there is neither?
Professor Bell identifies five other points of demarcation that have been employed in other jurisdictions: (1) the date of separation; (2) the date of filing for divorce; (3) the date of a divorce hearing; (4) the date of the divorce judgment; and (5) a date fixed by the court in its discretion. Bell on Mississippy Family Law, 2nd Ed., § 6.02[3][b], p. 135.
In Doyle v. Doyle, 55 So.3d 1097, 1107 (Miss.App. 2010), the COA held that marital equities continue to accumulate where there was no separate maintenance or temporary order. In Aron v. Aron, 832 So.2d 1257, 1258-59 (Miss.App. 2002), however, the COA held that it was in the chancellor’s discretion to classify the property as marital or non-marital where there was no separate maintenance or temporary order. In either case, the chancellor should consider the parties’ relative contributions in making the division of the post-separation-acquired property. Striebeck v. Striebeck, 5 So.3d 450, 452 (Miss. 2008).
The most recent case on point is Cuccia v. Cuccia, decided by the MSSC on June 28, 2012. The case was before the court on certiorari from the COA, which had reversed the chancellor. The Supreme Court’s opinion stated:
“¶9. In the case before us, a separate maintenance order was not entered, but a temporary support order was issued on May 6, 2008, and filed on May 9, 2008. In reviewing the chancery court’s [divorce judgment], we do not find that he set out the specific date as the line of demarcation in classifying marital verus nonmarital property. He must do so. After determining the line of demarcation, the chancery court must then determine which assets and liabilities are marital and nonmarital in accordance with Ferguson and Hemsley. Then, he must divide the marital estate equitably.” [Footnotes omitted]
So the direction is clear: if the chancellor does not make the demarcation line clear, there is reversible error in the record. You can influence the judge to pick that date, or you can do it via MRCP 59 motion; either way, if you let the record be finalized without a demarcation line, be sure to keep your trial notes, because you’ll need them for the remand trial.
The court gave no direction for how the chancellor should draw the magic line. If the case makes its way back for a third appellate decision we may find out. If not, then we will have to await a more definitive decision.
Until then, give some th0ught to how you want the marital estate divided and why. Give the judge some proof in the record to support a line of demarcation that is in your client’s favor. It might just put some money in your client’s pocket.
WRONGFUL DEATH AND THE ERRANT FATHER
June 28, 2012 § 1 Comment
In 1988, Catherine LePori gave birth to a son, Brandon, without benefit of marriage. In 2001, DHS filed an action against Alton Welch to establish paternity of the child. For reasons unexplained in the record, no judgment was entered until 2007. Those are the barebones facts that underlie the COA decision in LePori v. Welch, decided June 26, 2012.
We can deduce from the record that Alton never paid any significant child support during the pendency of or after that DHS suit, and that he did not develop any significant relationship with the boy.
In March, 2008, Brandon was was working in a sewer line when it caved in and he was killed. He was nineteen at the time.
In March, 2009, Catherine filed suit to terminate Alton’s parental rights posthumously, expressly for the purpose of preventing Alton from having any interest in a wrongful-death suit she had filed. Alton had filed a motion to intervene in the wrongful-death action.
The chancellor dismissed Catherine’s petition for failure to state a claim, and she appealed.
In its decision, the COA noted that the statutes providing for termination of parental rights (MCA 93-15-103, et al.), are concerned with the best interest of the child, not the parents or survivors. Thus, if the child is deceased the statute logically no longer applies. The court held that the statute is not to be applied posthumously.
Catherine argued that dismissal of her termination case would unjustly enrich Alton, whom, she alleged, had caused substantial erosion of the parent-child relationship. Judge Maxwell’s opinion pointed out, however, that MCA 91-1-15(3)(d)(i) provides that the natural father must have “openly treated the child as his, and ha[ve] not refused or neglected to support the child” in order to inherit. That code section is incorporated into the Wrongful Death Act (MCA 11-17-13).
Based on the code sections, Judge Maxwell pointed out that Catherine could have filed an action to determine Brandon’s heirs at law in his estate, and pled 91-1-15 as a basis to adjudicate that he had no interest. Or, Judge Maxwell noted, she could have pled the statute to argue against Alton’s motion to intervene in the circuit court action.
This is an interesting case that has implications beyond its apparently narrow focus. When you’re confronted with issues such as this, don’t get tunnel vision and limit yourself to one way to go. Keep your eye on the big picture and consider how all the component parts fit together.
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