INS AND OUTS OF GRANDPARENT VISITATION

July 26, 2010 § 4 Comments

[This outline is based in part on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Who is entitled to grandparent visitation?

Category One:  Grandparents who have a change in status.  § 93-16-3 (1), MCA.

— Child of the grandparents lost custody of the grandchild to the grandchild’s other parent, or

— Child of grandparents had parental rights terminated, or

— Child of grandparents is deceased.

Category Two:  Grandparents who are not in Category One and have a “viable relationship.”  § 93-16-3 (2), MCA.

— If grandparent had established a “viable relationship” with grandchild and grandchild’s parent or custodian hs unreasonably denied visitation with the grandchild, and

— Visitation rights will serve the grandchild’s best interest.   

A “viable relationship” is where the grandparent has supported the grandchild in whole or in part for not less than six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition. 

In order to determine whether visitation rights will serve the child’s best interest, and the extent of the visitation that should be ordered, the court must address the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997), which are set out here.

Grandparent visitation is not available to grandparents of children given over for adoption, unless one legal parent is also a biological parent, or unless one adopting parent was related to the child by blood or marriage prior to the adoption.  § 93-16-7, MCA.

Visitation is available to persons who become grandparetnts by virtue of adoption.  § 93-16-7, MCA. 

Siblings and other third parties have no common law or statutory right to visitation.  Scruggs v. Satterfiel, 693 So.2d 924, 926 (Miss. 1997).

Venue is in the county where a child custody order was previously entered, or in the county where the child resides, if no custody order has been previously entered.  § 93-16-3 (4), MCA.

Summons and service of process is had on the custodial parent(s), pursuant to Rule 81, MRCP.

SALE OF REAL PROPERTY IN AN ESTATE

July 21, 2010 § 6 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Vesting of title.

Real property vests directly in the heirs in an intestacy.  Parker v. Newell, 245 So.2d 575 (Miss. 1971).  It vests in the devisees in a testate estate.  Anderson v. Gift, 126 So. 656 (Miss. 1930).  Also See, In Re Estate of McRight, 766 So.2d 48 (Miss. App. 2000).

Abatement.

Even though the real property passes directly to the heirs or devisees, and not into possession of the Administrator or Executor (unless the Executor is directed by the will to sell the real property), it is subject to the claims of creditors and payment of estate expenses.  The rules of abatement govern the order in which assetss of the estate must be first applied to such claims and expenses.  Gordon v. James, 39 So. 18 (Miss. 1905); §§ 91-7-91 and -191, MCA.

Authority to sell real property.

When a petition to sell real property to pay debts is filed, all parties interested shall be cited by personal summons or publication.  § 91-7-197.  The burden of proof is on the petitioner to show that the land must be sold in preference to the personal property.  Brown v. McAfee, 421 So.2d 1061 (Miss. 1982); Blum v. Planters’ Bank & Trust Co., 122 So. 784 (Miss. 1929).  In such instances the Executor or Administrator would generally be the petitioner.

A will may grant the Executor the express authority to sell the real property.  Glidewell v. Pannell, 130 So.2d 288 (Miss. 1930).  If the Executor under the will is specifically instructed to sell the real property, there is no requirement for court approval.  Davis v. Sturdivant, 19 So.2d 499 (Miss. 1944).    

Execution of the deed.

If the property has vested in the heirs or devisees, the Administrator or Executor should not sign the deed.  See the citations above.  There is no title in the Administrator or Executor to convey.  The heirs or devisees sign the contract, exeecute the deed, and receive the cash proceeds.

There are, however, two instances in which the personal representative will sign the deed.  First, if the Executor is given the power of sale by the terms of the will, he or she should execute the will.  Second, if the sale is by court order, the Executor or Administrator should sign the deed.  §§ 91-7-187, -189, and -191, MCA.  The practical effect of sale by court order is to divest the title out of the heirs or devisees, as the case may be.

Necessity of bond.

When real property is sold pursuant to a decree of the court, the Executor or Administrator shall execute a bond equal to the proceeds of the sale of the land.  § 91-7-205, MCA.  This code section does not apply to a sale by the heirs or devisees in whom title has vested.

There is an exception to the requirement of bond.  If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficioaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond.  § 91-7-205, MCA.

If an Executor or Administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land.  § 91-7-207, MCA.  An early case held that failure to give the bond voids the sale.  Buckner v. Wood, 45 Miss. 57 (1871).  

TRIAL BY CHECKLIST: CHILD CUSTODY FACTORS

July 19, 2010 § 32 Comments

A practice tip about trial factors is here.

The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983). 

The factors are:

  1. Age, health and gender of the child.
  2. Parent having continuity of care prior to the separation.
  3. Parent with best parenting skills and willingness and capacity to provide primary child care.
  4. Employment of the parent and responsibilities of that employment.
  5. Physical and mental health and age of the parent.
  6. Emotional ties of parent to child.
  7. Moral fitness of the parent.
  8. Home, school and coomunity record of the child.
  9. Preference of the child at age sufficient to express a preference.
  10. Stability of parent’s home environment and employment of each parent.
  11. Relative financial situation of the parents.
  12. Difference in religion of the parents.
  13. Differences in personal values of the parents.
  14. Differences in lifestyle of the parents.
  15. Other factors relevant to the parent-child relationship.

The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula.  Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001).  The Chancellor may give special weight to one, two or several factors to determine the outcome.  Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003).  The Chancellor has the ultimate discretion to judge the weight and credibility of evidence.  Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).      

In an original action for custody, the Albright factors govern the award. 

In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail: 

  1. That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; and    
  2. That the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven
  3. That it is in the best interest of the minor child to change custody.  Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.

The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand.  It is a three-prong or three-part test. 

There is one exception to the three-part test for modification.  In the case of Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the Mississippi Supreme Court held that it is not necessary to prove adverse effect where the child is in an inherently dangerous or unsuitable situation, as where the custodial parent is using drugs.  Evidence of the Albright factors should still be offered in such cases.  Some argue that Albright proof would not be necessary in a case where the proof shows a clearly dangerous circumstance, but it is this judge’s position that proof of the Albright factors in such a case would make the case airtight.  

There have been cases following Riley that have explained and even expanded on the concept, so that now there is arguably a “totality of the circumstances” test to justify modification.  Some attorneys have taken the position that the “totality” is an alternative avenue to the three-pronged test.  This court is not convinced, and takes the position that Riley and its progeny apply in extreme circumstances where the proof shows that the child is showing no adverse effects despite being in an inherently dangerous situation.  In my opinion, the Riley line of cases is not intended to create a new remedy where there is no inherently dangerous situation and the proof is not strong enough to satisfy the three-prong test.

The Albright factors apply only to physical custody, and the Chancellor is not required to address them in considering whether to grant joint legal custody only.  Palculict v. Palculict, 22 So.3d 293 (Miss. App. 2009).

OUTLINE FOR MINOR’S SETTLEMENTS

July 16, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Petition

  • Are all necessary parties properly joined?
  • Ward – petitions through guardian or next friend.
  • Both parents, if living, are essential parties unless the child is placed under legal guardianship of one parent (e.g., by divorce) or of a third party. 
  • If neither parent is living and no legal guardianship has been established, a guardianship should be established before going forward with the settlement.
  • Is there any need to join ancillary 3rd parties such as DHS or Worker’s Compensation Commission?  § 93-13-59, MCA;  Mississippi Bar v. Moyo, 525 So.2d 1289 (Miss. 1988). 
  • A guardianship is not required for settlements of money or property valued at $25,000 or less, and the $25,000 amount refers to the gross amount and not the amount due the ward after payment of legal fees and expenses.  The court may, in its discretion, require a guardianship in any case, and in this court’s opinion, a guardianship should be required if the gross settlement settlement amount is $10,000 or more.  § 93-13-211, MCA.

Hearing

  • The court must conduct a hearing regarding settlement of the ward’s claim, and a witness on the ward’s behalf must be heard.  Union Chevrolet Co. v. Arrington, 138 So.2d 593 (Miss. 1932).
  • The hearing must be had on the record.

Approval or Disapproval of Settlement

  • The court considers the evidence presented to determine whether the settlement is in the best interest of the child.
  • The court may apply terms and conditions for holding the minor’s property during the period of guardianship.

Accounting

  • When a guardianship is established, annual accounts of receipts and expenditures are required unless excused by the court.
  • A final accounting is necessary at the cessation of the guardianship.  § 93-13-67 through -77, MCA. 
  • § 93-13-38, MCA, 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, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”

HABEAS CORPUS STEP BY STEP

July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …”  §11-43-1, MCA. 

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody.  This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP. 

The first step in obtaining the writ is to file a petition with the court.  The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought.  §11-43-9, MCA.  Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered.  Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).   

Next, the petition is presented to the court.  Some judges require that the petitioner appear personally to testify in favor of granting the writ.  This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ.  The Chancellor may issue the writ also.  §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to:  _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him.  Witness my hand, etc.”  §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable.  §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time.  §11-43-27, MCA.  The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ.  The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time.  The statute sets out the required language for the writ in such cases.  §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency.  §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time.  §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ.  The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt.  §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require.  §§ 11-43-33 and -39, MCA.  Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party.  §11-43-39, MCA.  The court may award “costs and charges, for or against either party, as may seem right.”  §11-43-33, MCA.   

The court may make temporary orders.  §11-43-35, MCA.

The court’s judgment is final, binding and appealable.  §§11-43-43, -53 and -55, MCA.  The habeas court does not have continuing jurisdiction to modify its award.  See, Mitchell v. Powell, 179 So.2d 811 (Miss. 1965).  The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature.  See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009). 

Habeas is not to be used as a mechanism to modify prior custody decrees.  Fulton v. Fulton, 218 So.2d 866, Miss. 1969).  In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody.  In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.    

An observation:  It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest.  The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent.  If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

TRIAL BY CHECKLIST: ADVERSE POSSESSION

July 12, 2010 § 11 Comments

A practice tip about trial factors is here.

Section 15-1-13, MCA, sets out a six-part test that must be applied to determine whether adverse possession has occurred. 

In order for possession to be adverse, it must be:

  1. Under claim of ownership.  The possessing party must have acted with respect to the land as if he or she owned it. Jordan v. Peters, 986 So.2d 1018, 1022 (Miss. App. 2008); 
  2. Actual or hostile.  Actual possession is effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses. Blankenship v. Payton, 605 So.2d 817, 819-820 (Miss. 1992); 
  3. Open, notorious and visible.  In order for possession to be open, notorious and visible, “An adverse possessor must unfurl his flag on the land and keep it flying so that the owner may see … that an enemy has invaded his domains, and planted the standard of conquest.” Sturdivant v. Todd, 956 So.2d 977, 982 (Miss. App. 2007);
  4. Continuous and uninterrupted for a period of ten years.   Possession may be tacked on to the possession of predecessors in title. Jordan, at 1023;
  5. Exclusive.  The law requires that the person possessing the property in question must intend to possess the land over all others and to the exclusion of all others. Sturdivant, at 992; and
  6. Peaceful.  The adverse possession must be peaceful and unchallenged by the title owner. See, Sturdivant, at 987.

The claim of adverse possession must be established by clear and convincing evidence. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss. 1992).

The adverse possession statute was enacted by the legislature to address the serious problems caused by landowners who ignore claims or encroachments over long periods of time. Clanton v. Hathorn, 600 So.2d 963, 966 (Miss. 1992).

There are various cases interpreting the adverse possession factors.  The cases cited here are only a basic introduction.

 

TRIAL BY CHECKLIST: ATTORNEY’S FEES

July 9, 2010 § 20 Comments

A practice tip about trial factors is here.

If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees.  In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:

  1. The parties’ relative financial ability;
  2. The skill and standing of the attorney;
  3. The novelty and difficulty of the issues;
  4. The degree of responsibility involved in management of the case;
  5. Time and labor;
  6. The usual and customary charge in the community;
  7. Preclusion of other employment as a result of accepting the case.

If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal. 

In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors.  In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.

In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse.  In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.

TRIAL BY CHECKLIST

July 5, 2010 § 23 Comments

Some years ago an old Chancellor complained to me that we were being reduced to “trial by checklist,” what with all the cases being handed down that spelled out factors that the trial court must address in adjudicating certain issues.  Over the years, those so-called checklists have multiplied, so that Chancellors are required to consider and address factors in determining:

  • Child custody
  • Equitable distribution
  • Periodic and rehabilitative alimony
  • Lump sum alimony
  • Grandparent visitation
  • Separate maintenance
  • Modification of child support
  • Adverse possession
  • Attorney’s fees

Over time, I will be posting these factor “checklists” for your use.

Remember that these factors are the ones that must be decided by the judge in order to decide your case.  In essence, the factors are the elements of the case that will determine its outcome.  If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor. 

Practice Tip:  When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses.  Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.

PROBATE OF WILL IN COMMON FORM

June 30, 2010 § 2 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Admission of will to probate:

  • Original will must be presented and filed, if available.
  • Petition must have copy of the will attached.  Uniform Chancery Court Rule 6.15.
  • Will must be proven by at least one subscribing witness, usually through affidavit attached to self-proving will, or by proof of will executed later.  §91-7-7, MCA.

Caveat:

  • Will may not be probated in common form if there is a previously-filed written objection to probate.  §91-7-21, MCA.

Executor appointed and Letters Testamentary Granted:

  • Court appoints executor named in the will, if appropriate.
  • Executor must be over 18 years of age, of sound mind, and not a convict of felony.
  • If no person qualifies or agrees to act as executor, court may appoint one.  §§91-7-35 and 91-7-39.

Oath and Bond:

  • At the time that Letters Testamentary are granted, executor must take and subscribe the oath set out in §91-7-41, MCA.
  • At the time that the executor takes the oath, the executor must also post bond equal to the full value of the estate, unless bond is waived by the terms of the will.  Even so, the court has authority to require a bond.  §91-7-41, MCA.

Notice to Creditors:

Executor has the responsibility to give notice to creditors in the prescribed form and in the proper order set out in §91-7-145, MCA, as follows:

  • Executor to make reasonable effort to identify creditors having a claim against the estate and to mail them actual notice of the 90-day time period in which to file a claim.
  • Executor must file an affidavit of known creditors and attest to having served actual notice on them.
  • Executor must publish notice in newspaper publsihed in the county informing creditors that they have 90 days in which to file a claim against the estate; publication to run 3 times, once per week for 3 consecutive weeks.
  • Executor is required to file proof of newspaper publication in the court file.
  • Publication may be waived by the court in very small estates having value not more than $500.

Inventory and Appraisal:

  • If not specifically waived in the will, the executor is required to complete and file inventory and appraisal within 90 days from the grant of Letters Testamentary.  §91-7-45, MCA.
  • The court may require inventory and appraisal eben if waived in the will.

Interim Hearings:

  • Held as necessary to resolve interlocutory conflicts between the parties.

Accountings:

  • Accountings are required annually and upon closing the estate. 
  • All parties may agree to waive final accounting, and by custom also annual accountings.

Petition to Close Estate and Discharge Executor:

  •  Final account must be filed with petition to close unless excused by the court.
  • All parties in interest must be summoned to hearing on final account and petition to close.  §91-7-295, MCA.
  • Any party may enter an appearance by consent and waiver.
  • If approved, the court enters its final judgment for final distribution of any property remaining in the executor’s care.  §91-7-297, MCA.

NEW LEGISLATION THAT MAY AFFECT YOUR CHANCERY PRACTICE

June 25, 2010 § 6 Comments

A number of bills passed in the 2010 Regular Session of the Legislature that you may find will have some effect on your practice in Chancery Court.  Below is a bulleted list with a brief description of the pertinent portions of each bill.  You can read the full text of the bills here.  Thanks to Steve Horne, Representative in District 81 for providing me with the summaries.  I will provide more detailed summaries of some of the bills in later posts.

All laws are effective July 1, 2010, unless noted otherwise.

  • HB 277.  Statutory method for renewing a judgment.
  • HB 704.  DHS may obtain income tax and sales tax information without a subpoena for individuals who are delinquent in child support payments. 
  • HB 886.  Prohibits a deed restriction or other covenant running with the land that requires a transferee or his heirs, successors or assigns to pay a property transfer fee, and any such provision is void and unenforceable.  The prohibition does not apply to certain property owners’ associations.
  • HB 1400.  Increases from $10,000 to $20,000 the amount of money or value of property that may be transferred to a ward without a guardianship, in the discretion of the Chancellor.
  • SB 2413.  Amends § 93-5-34, MCA, to clarify custody and visitation procedures when a parent receives military orders for temporary duty, deployment or mobilization.
  • SB 2929.  Youth Court has exclusive jurisdiction over delinquent acts committed by a child until the child’s 18th birthday.  Circuit Court may assume jurisdiction when transferred to it from Youth Court.
  • SB 2800.  Remedies of lien laws available to suppliers and construction contractors are made available on the same basis to rental and lease equipment suppliers.
  • HB 1479, effective July 1, 2011.  The name of Oakley Training School is changed to Oakley Youth Development Center.
  • HB 1049 and 1525.  Makes many changes in the mental commitment law.  The changes are too numerous to list here, and they will be detailed in a subsequent post.   

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