TEMPORARY SUPPORT AND ITS IMPACT ON THE FINAL OUTCOME
December 6, 2011 § Leave a comment
I argued with sporadic success when I was in practice that the court should consider the amount of temporary spousal support paid when making its final determination of equitable distribution. It’s only logical, when you think about it. The paying spouse is having to defer further accumulation of wealth to support the other, and, in some cases, is required to deplete a separate estate to do so. Many divorce cases take months, even years, to come to trial, and the payments for temporary support do mount up.
So what is the likelihood that you can prevail with such an argument?
A case you can cite for authority is Wells v. Wells, 35 So.3d 1250, 1258 (Miss.App. 2010). In that case, the chancellor had considered in her Ferguson analysis under “Any Other Factors That Should be Considered” the fact that the husband had paid the wife over $80,000 a year since the temporary judgment, including $1,500 a month in temporary alimony, and $650 a month as a grocery allowance. The COA affirmed the chancellor’s division of the marital estate, concluding that “We cannot find that the chancellor’s division was clearly erroneous. The Ferguson factors were thoroughly considered, and the division was made in such a way as to eliminate alimony.”
An arrow you might want to have in your quiver next time you’re looking to score a bullseye for your client.
UCCR 8.05, AMENDED
December 5, 2011 § Leave a comment
The Mississippi Supreme Court approved an amendment to the financial reporting form requirement on December 1, 2011. You can read the entire, amended rule here.
The amendment adds the following language:
The disclosures shall include any and all assets and liabilities, whether marital or non-marital. A party is under a duty to supplement prior disclosures if that party knows that the disclosure, though correct when made, no longer accurately reflects any and all actual income and expenses and assets and liabilities, as required by this Rule.
The amendment adds two significant provisions: (1) The duty to disclose both marital and non-marital financial matters; and (2) the duty to supplement.
Both of the added requirements clarify the duty of disclosure and give the courts clearcut authority when called upon to address less than candid financial reporting.
If I were practicing nowadays, I would create a handout for my clients detailing the duty of disclosure and the duty to supplement, and I would have my client sign a receipt for the handout to keep in my file. It could come in handy when the client gets burned to a charred ember for false or inadequate disclosure, and the client tries to point the finger of blame at the attorney.
I would also take great care with my 8.05’s. I would go over them with my clients to make sure they are complete and accurate.
If you still aren’t convinced of the importance of adequate, timely, up-to-date and supplemented 8.05 statements, I invite you to read yet again about the disastrous (for the non-disclosing party) case of Trim v. Trim. Fair warning, however: don’t read Trim right before bed time; it might keep you awake.
I’ve tried to stress on this blog just how crucial it is to your case to present a well-prepared financial statement. Here are some links:
REVISITING TRIAL CHECKLISTS
November 22, 2011 § 2 Comments
Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.
I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.
Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.
ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION
November 21, 2011 § 1 Comment
We’ve talked here before about the proper procedure to withdraw from representing a client.
It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.
The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.
On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.
On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.
Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.
The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”
The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:
” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”
In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.
The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.
THE VALUE OF VALUATION
November 17, 2011 § 3 Comments
Some lawyers like to play a cat-and-mouse game in which they go light on some proof, expecting the chancellor to fill in the blanks in their client’s favor. Sometimes that strategy fails calamitously.
The latest case in point is Powell v. Powell, decided by the COA on November 8, 2011, an equitable distribution case. Sherida Powell and her husband James were locked in a battle over the marital estate, the major components of which were the marital residence, some future payments from the sale of a business, and James’s retirement account. The chancellor decided the values based on the proof, and sherida hit the appeal button, complaining that the judge’s adjudication of values was incorrect.
The COA, via Judge Irving, disagreed with Sherida. The opinion is instructive about what works and does not work as proof of values, so I am quoting it here:
¶20. Sherida first attacks the value that the chancery court assigned to the marital home, which James testified was worth $80,000 before he renovated it prior to his marriage to Sherida. Sherida complains that numerous documents could have been provided to prove the value of the home. While such documents could have been provided, they were not–not by James, and not by Sherida. Sherida was entitled to provide whatever documentation she could obtain regarding the value of the home; in the absence of such, we decline to find error with the chancery court’s valuation of the home. * * *
¶21. Sherida next complains that the chancellor erred in “failing to calculate the value” of the future payments on the promissory note from ASAP’s sale. We note that Sherida made no effort to provide a calculation of the future value of the payments. In the absence of any valuation of the ASAP promissory note payments, we decline to hold the chancery court in error in its valuation of the payments.
¶22. Sherida also complains that James’s retirement account should have been considered a marital asset. In her brief, Sherida concedes that the only evidence as to the value of the account came from her trial exhibit 31. That exhibit was simply a summary of Sherida’s valuation of certain assets, including James’s retirement account. It appears that Sherida’s “value” for the account is simply the percentage that she believes she should receive of each of his monthly disability checks. This did not provide the chancery court with an adequate valuation of the retirement account. No other evidence was presented by either party that conclusively established the account’s value. Under these circumstances, the chancery court did not err in declining to evaluate the account as a marital asset.
A few nuggets from this case:
- The chancellor has no duty to go out and develop your proof for you. It’s up to you to put adequate proof in the record to support your client’s position. If you don’t do so, the appellate courts are not going to entertain your complaint that the judge should have found a different way.
- The chancellor can pick and choose what to believe from equivalent proof. In other words, if each party simply lobs up a guess as to a value, the judge can pick which one to swing at and hit. It’s up to you to come up with weightier proof, like an appraisal from a qualified appraiser, or some other weightier source, if you want to have the upper hand as to values.
- If you want the judge to calculate future values or some such, then offer an expert, or a stipulated table, or something of the like. Don’t expect the trial judge to perform actuarial and trigonometric calculations when you have not provided the template to do so.
- If you fail to provide adequate proof of the valuation of a retirement account and the parties’ relative contributions to it, you do so at your client’s peril. Here, the fallout was a finding by the trial court that the account was not marital. In Pierce v. Pierce, 42 So.3d 658 (Miss.App. 2010), the fallout was a remand for further findings of fact.
- If you don’t put evidence into the record, don’t expect to be able to argue about it on appeal. And don’t expect the trial judge to rule in your favor, either.
- Once again … the more difficult you make it for the trial judge to figure out, the less likely you will prevail, as I have often said here before.
- When you have a valuation case, jump on it early. Get your client to bring you as many documents as possible, such as account balances, valuations, appraisals and financial statements. Get tax returns with depreciation info. Collect closing statements and property tax data. Use discovery to get admissions as to admissibility and authenticity of documents, and to admit values. Discover the existence of any other documents. If valuation will be contested, line up your experts. And remember that experts must be designated no later than 60 days before trial, per UCCR 1.10, if you were requested to disclose them in discovery.
There’s another interesting aspect to this case, and you can read about it here.
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.
THE LAW OF INTENDED CONSEQUENCES
October 31, 2011 § Leave a comment
Who owns a joint savings account? If your answer is that each person named on the joint account owns 100% and is entitled to withdraw and spend all of it, step right up here with us other average intellects.
If, on the other hand, your answer was to the effect that “It depends on what the parties intended,” then take your gold star and step over there with all the other geniuses.
Here is a scenario to illustrate:
Marie, Edward, Josie and Bennie are siblings. Together they open two savings accounts and a CD for the benefit of their elderly parents.
Each account requires the signature of two of the four parties to make a withdrawal.
The mother died, and after her death Marie and Edward unilaterally withdrew some of the money and put it in a “safe place” to be used to do some repairs on property owned by the dad in which the four siblings had an ownership interest. The father then died.
It is undisputed that the siblings had agreed when they opened the accounts that, upon death of the parents, any money remining was to be divided equally among all four siblings.
Josie and Bennie took exception to the withdrawal and filed suit in circuit court for charging Marie and Edward with the tort of conversion. Marie and Edward took the position that each sibling possessed an equal ownership interest in the accounts, and that they had legal authority to make the withdrawals. They denied that there was any conversion as a matter of law, because they had absolute authority to withdraw the funds. Josie and Bennie took the position that the withdrawal violated the parties’ agreement, and that the funds were being unlawfully withheld.
The circuit judge granted summary judgment in favor of Josie and Bennie, and Marie and Edward appealed.
In the case of Stevens and Bohannon v. Smith and Bohannon, decided October 4, 2011, by the COA, the court affirmed the circuit court.
The decision recited the familiar rule of joint accounts:
Regarding joint accounts, it is well settled in Mississippi that joint-account holders have given each other absolute authority over an account “and the unconditional power to withdraw all or any part of the account.” Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061, 1066 (¶9) (Miss. Ct. App. 2001) (citing Deposit Guar. Nat’l Bank v. Pete, 583 So. 2d 180, 184 (Miss. 1991)).
Although Marie and Edward had the unqualified right to withdraw the funds, they did not have the right to deprive Josie and Bennie of their right to an equal interest in the funds. The court said at ¶ 12, Citing Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963), that ” … joint accounts are presumed to be vested in the names of the account depositors as equal contributors and owners in the absence of evidence to the contrary; however, intent of the parties is the controlling factor.” And:
The peculiar features of a joint and several bank account make it difficult, if not impossible, in most cases, to determine what portion of the account belongs to each depositor. A long series of deposits which cannot be traced to their source, and a similar series of withdrawals which cannot be traced to their destination, are normally involved. This defect is inherent in the severalty feature of such bank accounts wherein each depositor is allowed to treat joint property as if it were entirely his own. A joint bank account of this kind is generally a creature of contract between parties avowedly indifferent to the exact percentage of ownership between themselves. It is said that the law should take them at their word and give effect to their contract without making detailed evidentiary inquiries to establish factual ownership. The prevailing view seems to be, however, that while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners in the absence of evidence to the contrary, the intention of the parties is the controlling factor, and where a controversy arises as to the ownership thereof evidence is admissible to show the true situation.” [Emphasis in bold added]
Since the undisputed proof in this case was that the parties had agreed to a joint ownership arrangement for the funds remaining after the parents’ death that were not needed for their care, it was conversion for Marie and Edward to deprive Josie and Bennie of their share of the funds.
The decision does not mention the parol evidence rule. It seems to me that there are parol evidence considerations in that the agreement to deposit the money into a joint account is a contract evidenced by the signature card and the bank regulations that are usually printed on it. Doesn’t this case in essence say that the agreement between the parties can be varied by parol evidence even when the agreement is not shown to be ambiguous?
So what are the ramifications of this case for family law practitioners? In my opinion, this rationale opens another line of attack in the situation where one spouse has withdrawn money from a joint account in anticipation of divorce. I say “another line of attack” because claiming the money is subject to equitable distribution is the usual, obvious course. But what if, for instance, it is undisputed that the parties had agreed that the proceeds from sale of husband’s separately-owned horses that were deposited into a joint account were to be used specifically to pay for the college education of his child by a previous marriage instead of being divided? Or what if it had been agreed that the joint income tax refund that was deposited in a joint account was to be used 100% to pay off husband’s credit card debts that had been incurred for the household? In either case where you represented the husband, it would clearly be in his interest to look to the intent of the parties rather than to equitable distribution.
UCCR 8.06 ON STEROIDS
October 25, 2011 § 7 Comments
Unless you’ve been practicing law under a rock for the past umpteen years, you are surely aware of the requirements of UCCR 8.06. That’s the rule that mandates filing each party’s name address and telephone number with the chancery clerk, with service on the other party, in every action involving custody of children, and within five days of any change.
Did you know that there is a statutory counterpart to UCCR 8.06 that requires even more detailed information in paternity and child support cases?
MCA § 93-11-65 (5) now provides that:
Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and the state registry, information on that party’s location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer. This information shall be required on entry of an order or within five (5) days of a change of address.
This provision is not limited to DHS actions for support. In my opinion, it applies in all cases where there is a provision for child support, including irreconcilable differences divorces. You should see to it that this is addressed in your property settlement agreements and judgments.
ONE TOKE OVER THE LINE
October 24, 2011 § 5 Comments
MCA § 93-5-1 lists the statutory grounds for divorce. Ground “Sixth” is “Habitual and excessive use of opium, morphine or other like drug.”
The somewhat archaic language of the statute has given rise to some obvious questions, including:
- What frequency of drug use is required to be considered habitual?
- When is use of opium, morphine and “other like drugs” excessive (and, for that matter, when is it not excessive?)
- What drugs are included in the definition of “other like drugs?”
Perhaps the leading case to address these questions has been Ladner v. Ladner, 436 So.2d 1366 (Miss. 1983), in which the MSSC held that the husband’s daily use of drugs was so excessive that he had lost the ability to control his use, and the prescription drugs that he used and abused had an effect on him similar to that which would have been produced by opium or morphine, including adverse effects on his cognitive abilities, social and family relationships, and work.
In the case of Carambat v. Carambat, decided by the MSSC on October 20, 2011, the court held that marijuana is a drug included in the definition of “opium, morphine and other like drugs,” and affirmed the grant of a divorce on the ground. The court spelled out that the ground requires that the plaintiff prove the spouse’s drug use was: (a) habitual and frequent; (b) excessive and uncontrollable; and (c) that it involved opium, morphine, or drugs with a similar effect as opium or morphine. Habitual use is proved with evidence that the spouse customarily and frequently used drugs. Excessive use is proven by showing that the offending spouse abused drugs. In determining whether a drug fits the definition of “other like drug,” the trial court should consider the using spouse’s ability or inability to support his wife and family, or to properly attend to business, as well as the guilty spouse’s ability or incapacity to perform other marital duties, or his causing the marital relationship to be repugnant to the innocent spouse.
The court found that evidence in the record did support the chancellor’s findings that the husband’s use of marijuana was habitual and excessive, and that it did have an effect similar to opium and morphine in that it did affect his ability to work and support the family, his family relationships and the family’s financial stability, rendering the marital relationship repugnant to the wife.
At trial, the husband had attempted to argue that the wife knew about his marijuana use before the marriage, and that she condoned his use during the marriage, but the chancelor refused to entertain his objections. On appeal, the MSSC upheld the chancellor, noting that MRCP 8 requires that an affirmative defenses such as condonation must be specifically pled as required, and if not pled is waived. The husband had failed to plead condonation, and the wife timely objected when he attempted to interpose the defense. The MSSC held that the defense was waived.
The husband had also attempted to raise the defense of recrimination on appeal, claiming that the wife had committed adultery. He had not, however, filed a counterclaim or otherwise raised the issue in any pleading, resulting in the same result as that for his failed condonation claim. The court also noted that MCA § 93-5-2 does not mandate denial of a divorce when there is evidence of recrimination.
In a cogent dissent, Justice Carlson takes the position that Mississippi is the first state to hold that marijuana use is a ground for divorce. He also opines that the court’s ruling will open the floodgates to many more divorces. His dissent is worth a read for his argument highlighting the differences between opiates and marijuana, and their statutory treatment in our law. Justices Dickinson and Kitchens joined Carlson’s dissent.
A few points I glean from this case:
- The court has fairly well spelled out the abc’s of what it will take to get a divorce on this ground. If your case fits the recipe, you will likely have some success.
- The key to whether the drug in your case will fit the definition is what effect it has on the life of the using party and its effect on the other spouse and the marriage.
- I agree with Justice Carlson that many cases that formerly were purely habitual cruel and inhuman treatment (HCIT) cases with marijuana use are now candidates for this ground, which could spell an increase in the number of cases. BUT, keep in mind that the burden of proof for ground the Sixth is clear and convincing evidence, which is a considerably heavier burden than the preponderance required for HCIT.
- A side effect of this decision will be to remove any doubt that marijuana use can be included in the discussion of the kind of drugs that can trigger a divorce. Again, the turning point will be the effect on the other spouse and the marriage itself because of the offending spouse’s conduct. What about “synthetic marijuana’ and marijuana substitutes?
- If you expect to raise condonation or recrimination as defense, whether at trial or on appeal, you had better plead them as required in MRCP 8(c).
WHAT IS THE EXTENT OF THE DISABILITIES OF MINORITY?
October 17, 2011 § 3 Comments
Minors can not act for themselves. We call this the “disability of minority,” and the chancery court is charged with protecting their rights. Alack vs. Phelps, 230 So. 2d 789, 793 (Miss. 1970).
The principle of minority disability is in keeping with the ancient maxim of equity that “When parties are disabled equity will act for them.” Griffith, Mississippi Chancery Practice, Section 34, page 37 (1950 ed.). More than 130 years ago, in the case of Price vs. Crone, 1871 WL 8417, at 3 (1870), the Mississippi Supreme Court stated:
“Nothing is taken as confessed or waived by the minor or her guardian. The court must look to the record and all its parts, to see that a case is made which will warrant a decree to bind and conclude [the minor’s] interest, and of its own motion, give the minor the benefit of all objections and exceptions, as fully as if specially made in pleading … There being no power in the infant to waive anything, a valid decree could not be made against her, unless there has been substantial compliance with the requirements of the law, in the essential matters.” [Emphasis added]
Thus, the chancery court can and should act on its own initiative to protect and defend the minor’s interest.
In the case of Khoury vs. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948), the supreme court held that, “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them …” This is so even where the minor has pled, appeared in court, and even testified.” Parker vs. Smith, et al., 150 Miss. 849, 117 So. 249, 250 (Miss. 1928).
Our modern MRCP 4(e) embodies these concepts wherein it specifically states that, “Any party … who is not an unmarried minor … may … waive service of process or enter his or her appearance … in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the ate thereof.” There is no provision in MRCP 4 that permits a minor to join in an action on his or her own initiative, or to waive process; in fact, the express language of Rule 4 makes it clear that such is not permitted.
It is a long-held fundamental of Mississippi law that process must be had on infants in the form and manner require by law, and a decree rendered against minors without service in the form and manner required by law is void as to them, as they can not waive process. Carter vs. Graves, 230 Miss. 463, 470, 93 So.2d 177, 180 (Miss. 1957).
The purpose of the protective posture of the law is clear: “Minors are considered incapable of making such decisions because of their lack of emotional and intellectual maturity.” Dissent of Presiding Justice McRae in J.M.M. vs. New Beginnings of Tupelo, 796 So.2d 975, 984 (Miss. 2001). During the formative adolescent years, minors often lack the experience, perspective and judgment required to recognize and avoid choices that are not in their best interest. Belotti vs. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043 (1979).
In the case of In the Matter of R.B., a Minor, by and through Her Next Friend, V.D. vs. State of Mississippi, 790 So.2d 830 (Miss. 2001), R.B., an unmarried, seventeen-year-old minor, became pregnant and sought chancery court approval of an abortion, pursuant to MCA § 41-41-55(4). The decision described her as, ” … of limited education, having attended school through the eighth grade,” and largely ignorant of the medical and legal implications of her request. Id., at 831. The decision reveals that the chancellor went to great pains to develop the record that the young girl had not been informed of the possible complications of the surgical procedure, that she was emotionally fragile and susceptible to mental harm, that there were services available to the youngster of which she was unaware, and other pertinent factors. Id., at 834. The supreme court upheld the decision of the chancellor, saying,
“R.B. has failed to persuade us that she is mature enough to handle the decision (for an abortion) on her own. The record does not indicate that the minor is capable of reasoned decision-making and that she has considered her various options. Rather the decision shows that R.B.’s decision is the product of impulse.” Id., at 834.
It has long been the law in Mississippi that all who deal with minors deal with them at their peril, since the law will take extraordinary measures to guard them against their own incapacity.
The principle of minority disability is ingrained in many facets of Mississippi law:
- Minors may not vote. Article 12, Section 241, Mississippi Constitution.
- Minors may not waive process. MRCP 4(e).
- Minors may not select their own domicile, but must have that of the parents. Boyle vs. Griffin, , 84 Miss.41, 36 So. 141, 142 (Miss. 1904); In re Guardianship of Watson, , 317 So.2d 30, 32 (Miss. 1975); MississippiBand of Choctaw Indians vs. Holyfield, 490 U.S. 30, 40; 109 S.Ct. 1597, 1603 (1989).
- Minors may not enter into binding contracts regarding personal property or sue or be sued in their own right in regard to contracts into which they have entered. MCA § 93-19-13.
- Minors may not have an interest in an estate without having a guardian appointed for them. MCA § 93-13-13.
- Minors may not purchase or sell real property, or mortgage it, or lease it, or make deeds of trust or contracts with respect to it, or make promissory notes with respect to interests in real property without first having his or her disabilities of minority removed. MCA § 93-19-1.
- Minors may not be bound by contracts for the sale of land, and may void them at their option.Edmunds vs. Mister, 58 Miss. 765 (1881).
- Minors may not choose the parent with whom they shall live in a divorce or modification; although they may state a preference, their choice is not binding on the chancellor. MCA § 93-11-65; Westbrook vs Oglesbee,606 So.2d 1142, 1146 (Miss. 1992); Bell vs. Bell, 572 So.2d 841, 846 (Miss. 1990). Minors may not after emancipation be bound by or enforce contracts entered into during minority except by following certain statutory procedures. MCA § 15-3-11.
- Minors may not legally consent to have sexual intercourse. MCA § 97-3-65(b).
- Minors may not legally consent to be fondled. MCA § 97-5-23(1).
- Minors are protected by an extended statute of limitations. MCA § 15-1-59.
It’s important to be aware of the legal status of the persons with whom you are dealing in land transactions, estates, contracts, and many other legal matters. In Mississippi, minors have many legal protections and disabilities that the courts will zealously guard.
The Better Chancery Practice Blog 