Practice and Procedure | The Better Chancery Practice Blog

BONDS IN ESTATES

June 22, 2010 § 2 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.]

Intestate Estates:

the Administrator is required to give a bond equal to the value of all of the personal estate. § 91-7-67, MCA.
Bond may be waived or reduced if (1) Administrator is the sole heir, or (2) all of the heirs are competent and agree in their sworn petition to waive or reduce bond, BUT
The court may nonetheless require a bond to protect the creditors if the court deems it necessary to protect their interests. Smith by and through Young v. Estate of King, 501 So.2d 1120 (Miss. 1987).
At any time that the court deems the bond inadequate, the court may require the Administrator to give a new bond. § 91-7-315, MCA.

Testate Estates:

The Executor is required to give bond in an amount equal to the full value of the estate. § 91-7-41, MCA.
Executor who is also a residuary legatee may give bond conditioned to pay all debts and legacies of the testator within one year. § 91-7-43, MCA.
If the testator in the will directs that the Executor not be required to give bond, then none is required unless the court or the clerk has a reason to require a bond. § 91-7-45, MCA.
Any creditor may petition the court to require the Executor to give a bond if the creditor believes that his or her claim is jeopardized due to bad management of the estate. § 91-7-45, MCA.
State or national banks domiciled in Mississippi are not required to give bond unless directed by the Will. The court has discretion to waive the bond notwithstanding that the Will directs it. § 81-5-35, MCA.

ELVIS HAS LEFT THE BUILDING

June 18, 2010 § 2 Comments

But so what? You can still find out how you can be TCB* by clicking on the TCB tab up there on the right.

TCB is where you go to find out how we do most things in Place 2, D12. Click and check it out.

* “Taking Care of Business”

So you dug and dug until by the hardest you found the defendant’s mailing address in Moosebreath, Idaho. Good for you. Pleadings all prepped and filed. Publication 3 consecutive weeks in the MERIDIAN STAR for that anticipated and fateful day. Notify client to be there. No answer filed. Case called in open court. Defendant called 3 times. Present judgment …

Judge shakes his head and says, “Sorry, no jurisdiction.”

What happened? How do you explain this to your client?

The answer is in Rule 4 (c) (4) (C), MRCP. That rule states: “Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be evidence of the summons having been mailed to the defendant” [Emhasis added].

Prectice tip: At the same time that you file your pleading, provide the clerk with an extra copy of the pleading and the summons and specifically request that it be mailed as set out in the rule, and that the facts of issuance of process and mailing be noted on the docket. Some lawyers, to add a measure of assurance, pay the postage for the clerk to mail it certified mail, return receipt requested, although that should not be strictly necessary if the facts of issuance and mailing are properly noted on the general docket.

MORE ON JURISDICTION FOR ADOPTION

June 16, 2010 § 5 Comments

I have already made the case for incorporating the adoption jurisdiction statute into your pleading forms here.

What I want to emphasize is that there is so much more to the jurisdictional statute than just a change from 90-day to six-month residency since its amendment in 2007 that you need to be aware of and address.

The statute is § 93-17-3, MCA. Pull out the statute and read it. This is important.

Subsection (1) sets out five different, basic scenarios for jurisdiction: (a) that the minor lived in Mississippi with a parent, guardian, prospective adoptive parent or other person acting as a parent for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (b) the prospective adoptive parent lived in the state for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (c) the agency that placed the child for adoption is licensed in Mississippi and it is in the child’s best interest to adopt because the minor’s parents or the minor and the adoptive parents have a significant connection with this state AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (d) the minor and the prospective adoptive parent are physically present in Mississippi and the child has been abandoned or there is an emergency to protect the child from mistreatment or neglect; or (e) no other state would have jurisdiction under prerequisites as (a) through (d), or another state has declined jurisdiction, and it is in the best interest of the minor for Mississippi to take jurisdiction.

From the foregoing, it is clear that it is not sufficient to allege merely that the parties have been residents of Mississippi for six months. All of the applicable elements must be pled in order to invoke jurisdiction.

Subsections (2) and (3) prohibit Mississippi from taking jurisdiction where there is any action for custody of the minor pending in another state.

In order to avoid problems with Section (2) and (3), the best practice would be to add an affirmative provision to your pleading addressing the jurisdictional issues raised in them, and adding a complete UCCJEA pleading would be prudent.

Subsection (4) limits adoption to an unmarried adult or a married person whose spouse joins in the petition. Your pleading should make it clear what is the marital status of your adoptive parent(s).

Other provisions of Subsection (4): The petition must be sworn and ” … filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.”

In my opinion, the pleading must set out one of the residency bases for jurisdiction, and it must be one that applies to the facts in your case.

The old requirements for a physician’s or nurse practitioner’s certificate and statement of property still continue in effect.

Subsection (4) also includes a requirement that the petitioner(s) must make an affidavit disclosing the amount of fees charged by adoption agencies or facilitators ” … and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition.”

In my opinion, the disclosure of fees and expenses requires a combination of any or as many of the following that apply: (a) a statement itemizing all such fees; (b) a statement that no fees have been incurred; (c) an itemization of “any other expenses.” I believe that the phrase “any other expenses” includes attorney’s fees.

Adoption is a purely statutory creature. Since it is in derogation of common law, the statute must be strictly construed and applied. If you do not properly invoke jurisdiction of the court in your pleadings, you are running the risk that at some later point someone will try to get the adoption decree set aside — most likely after a wrongful death suit has been filed — and you will be embarassed or worse.

Read the statute and plead it. The extra trouble will be worth it.

“HIGH WATERS” AND BURLAP SUITS

June 16, 2010 § 6 Comments

Philip Thomas, a lawyer in Jackson who publishes the MS Litigation Review & Commentary blog, has a clever piece about effective attire for the trial lawyer. You can read it here.

What interested me was the emphasis that jury-trial lawyers place on image and the subtle appearance clues that can influence jurors. Jurors have certain expectations bred from experience, years of watching dubious tv dramas about the law, and John Grisham novels. I remember years ago an expert at a seminar telling his audience in all sincerity that a lawyer should never wear green in the court room because it is an insincere color. If you want that billion-dollar verdict, you need to dress like a billion dollars. With so much at stake, who can blame a lawyer for striving to attend to even the smallest detail that could conceivably influence the outcome of a case?

Still, I almost laughed out loud at Mr. Thomas’ references to “high waters” and a burlap suit. My trial experience has been primarily in Chancery Court, where, of course, juries are empanelled as often as total solar eclipses. Chancellors are just not as susceptible as jurors to appearances, probably at least in part because Chancery Judges can’t afford to dress much better than the lawyers who appear before them. And anyway, Chancery Judges are mostly a jaded lot who have so many factors to weigh and consider in even the simplest case that we just don’t have the luxury of paying much attention to what the lawyers are wearing. Oh sure, a jacket and tie for males and “professional attire” for females in the court room are still de rigeur in Chancery. But that is required to preserve decorum, not to create a fashion show.

If it is true that “Clothes make the [man/woman],” I can say emphatically that in Chancery Court, clothes do not make the lawyer. In my many years of practicing and judging in mostly rural counties in Mississippi I have seen many a lawyer in “high waters” and burlap suits. I have worn them myself. I have seen lawyers in poplin suits, boiled white shirts with short sleeves, clip-on ties and galluses who were wizards in the court room. I have seen rumpled country lawyers in laughably poorly fitting suits send nattily dressed lawyers back to their sleek offices in the city rubbing equitable knots on their sore heads. I once tried a case in a country court room against a lawyer who had yet to remove the sewn-on tag from the sleeve of his sport coat, and I was glad to escape that trial with a squeaky victory.

Now, I am not trying to put down Mr. Thomas or other trial lawyers who navigate the rarified atmosphere of public interest and multi-district litigation, class actions, toxic torts and other legal train wrecks with billions on the line. You have to do what you have to do to make it work. I understand that. I just marvel at how sophisticated some of us have become over my nearly 40 years in bench and bar.

As I write this, I sit at my computer in my “professional golfer” attire (even though I don’t play golf). Nothing on the docket today, so I can relax and work on getting out an opinion that addresses five or six sets of those factors I mentioned above. Lawyers who pop in to open an estate are free to dress as they please as long as we remain in chambers and they don’t have a client tagging along. If we do have to head to the court room, I will be costumed in my robe, and the lawyers may feel free to wear their “high waters” or burlap suits.

And I’ll be thankful for our relaxed atmosphere where we can focus on the essentials.

ESSENTIAL INGREDIENTS FOR CHILD SUPPORT AND 8.06 PROVISIONS IN ID DIVORCES

June 15, 2010 § 2 Comments

The chancery judge in an irreconcilable differences (ID) divorce is required by law to make a determination about the sufficiency of the provision for support of the minor children. Different chancellors approach the task in different ways. Some judges require a complete Rule 8.05 financial statement from each party. Some judges take the word of the attorney or litigants.

In District 12, you are required to include some specific information about income of the paying parent. The property settlement agreement must include information showing gross income and deductions for taxes, Medicare and social security for year to date for the paying party, in the form of a pay stub attached to the agreement or a recitation of the actual figures, including monthly and year-to-date figures, in the body of the agreement; in the alternative, a statement satisfactory to the court as to why such information is not available. If the pay stub is attached, the agreement itself must include a provision that both parties have seen and are satisfied with the accuracy of the document. If the required information is not included, the agreement will not be approved.

As for Rule 8.06 disclosures, all current required information for both parties must be set out in the body of the agreement or in any attached visitation schedule. So the property settlement agreement must include the current names, addresses and telephone numbers of both parents and include the standard language informing the parties of their continuing duty of disclosure.

Practice Tip: Change your property settlement agreement forms to include the required language.

JURISDICTION FOR ADOPTION

June 14, 2010 § 1 Comment

Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.

§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes. There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state.

PRACTICE TIP: Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms. Then, when preparing your pleadings, strip out what does not apply.

Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.

At least twice a month I have to point these matters out to attorneys. Don’t embarass yourself with a client by being one of them.

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