Looking Ahead to 2020

December 30, 2019 § Leave a comment

If hindsight is, indeed 2020, then it follows that 2020 should be the year of hindsight, right?

But we do have some things to look forward to in 2020. So using foresight, here are some:

  • A slew of amended MRCP. The Supreme Court Civil Rules Advisory Committee has been busy over the past two years studying and revising the MRCP and Advisory Committee Notes to make them more functional, to address problems that have surfaced since the rules were adopted in 1982, and to clear up inconsistencies. The committee has sent a number of proposed amended rules up to the MSSC, and already the court has published an amended Rule 26. Look for plenty more in 2020. In fact, go to courts.ms.gov and click on Research/Rules/ Rules for Comment and you’ll see many there now for your study and comment. I encourage you to add your thoughtful comments. The end result of the changes will be more clarity and functionality.
  • New chancery court rules (UCCR). In October, the Conference of Chancery Judges unanimously approved new, revised UCCR and filed a motion with the MSSC to adopt them. If the court does adopt them, the several of you who do read and try to follow them will find them more accessible, clearer, updated, and consistent in form.
  • The GAP Act. It will be a new era for guardianships and conservatorships. Gone will be the confusing and sometimes contradictory web of statutes, replaced by a more streamlined system with clearer nomenclature and procedures. Yes, there will be a learning curve, and, yes, there are some tweaks that must be done in the upcoming legislative session to address some questions, but overall it will be an improvement.
  • Bell on Mississippi Family Law. Professor Bell is working on the third edition of her treatise, and it should be out in the new year.
  • New law every Tuesday and Thursday. For those of you who have bemoaned developments like those mentioned above, don’t forget that the law is ever-changing and evolving. Always has been and always will. If you question that, just read the hand-downs from the COA and MSSC every Tuesday and Thursday. There you will find weekly revelations, some of which challenge or even wipe out your long-held legal assumptions.

Big Changes Proposed for Probate

January 7, 2019 § 2 Comments

Secretary of State Hoseman convened a group to study and propose revisions to our estate and other fiduciary laws. Here is the summary provided by his office generally outlining the proposed statutory changes:

Revisions to Title 91 of the Mississippi Code governing estates and trusts will update statutory language and processes to provide clarity and ease of use for Mississippians. New statutes will be incorporated recognizing nonprobate transfers, ancillary and foreign administration, abatement, disclaimer of property interests, and revocation of probate and nonprobate transfers following divorce.

• Mississippi Real Property Transfer on Death Act “Transfer on Death Deed”: Enact a new statute to provide for nonprobate transfers of real property at death.

Example: John prepares before his death a transfer on death deed leaving his home to his two children so that his heirs may avoid probating the estate for purposes of transferring ownership of the family home. John’s transfer on death deed must be recorded, is only effective after his death, and is revocable at any time before his death.

• The Uniform Estate Tax Apportionment Act of 2003: Repeal Sections 27-10-1 through 27-10-25, the Uniform Estate Apportionment Act, and replace with the updated 2003 Uniform Estate Tax Apportionment Act under Title 91. The version of Uniform Estate Tax Apportionment Act previously adopted in Mississippi was originally drafted in the 1960s. In the last 50 years or so, people are using a revocable trust as a substitute for will and are using other forms of ownership to transfer assets at death. The federal estate tax provisions have also been substantially revised. The current version of the Uniform Estate Tax Apportionment Act recognizes these changes and provides detailed provisions for the apportionment of estate taxes when a decedent’s will or revocable trust does not provide for apportionment of estate taxes.

Examples: John executed a revocable trust during his lifetime. The revocable trust includes all of the provisions for the disposition of John’s property and provisions for the apportionment of estate taxes, if any, to various property. John’s will provides that all of his probate property is to be distributed to his revocable trust after his death. Unlike the previous version of the Uniform Estate Tax Apportionment Act, the more recent version of the Act makes it clear that the apportionment of estate taxes under the terms of the revocable trust will be respected.

John died without a surviving spouse. John’s executor filed a federal estate tax return reflecting a $1,000,000 federal estate tax liability. John’s will did not have provisions stating which assets should be used to satisfy the federal estate tax liability. Fifty percent (50%) of the assets includible in the taxable estate were owned by John at his death (“Probate Assets”) and Fifty Percent (50%) passed outside of probate by beneficiary designation, rights of survivorship or were held in his revocable trust (“Nonprobate Assets”). Generally, under the Uniform Estate Tax Apportionment Act, $500,000 of the estate taxes will be apportioned ratably to the Probate Assets and $500,000 ratably to the Nonprobate Assets. The Uniform Estate Tax Apportionment Act has provisions for payment of the estate tax and the process for collecting the apportioned estate taxes from the persons receiving the Nonprobate Assets.

• Affidavit of Successor: Amend Section 91-7-322, commonly referred to as the Small Estate Affidavit, to clarify the definition of successor and to increase the value of the probate estate to $100,000. This statute allows the transfer of personal property without the necessity of probate when the decedent’s probate estate is $100,000 or less.

Example: John dies leaving an estate, not including real estate or exempt property, which totals $60,000. Thirty days after John’s death, his spouse, Jane, would be able to present an affidavit to anyone possessing John’s personal property or owing a debt to him and have the property or payment of a debt transferred to Jane without the necessity of a probate proceeding.

• Fiduciary Transfer of Negotiable Paper: Amend Section 91-7-255 to permit a fiduciary to negotiate paper belonging to the estate without court approval and to update the standard of care applicable to the fiduciary. Often a fiduciary may need to enter into a transaction quickly to prevent a decline in value of stocks, bonds and other investments or to diversify investments when investments are too concentrated in a single investment.

Example: John’s son, Jim, becomes the court-appointed executor. Through his appointment Jim is granted the ability to trade or sell stocks, transfer any notes, convert certificates deposit and make other financial decisions necessary for the preservation of the probate estate. Jim is held to the same standard of care applicable to a trustee.

• Property Not to be Removed from State: Repeal Section 91-7-257 as this Section is no longer applicable. Often a will of a Mississippi resident designates a child or children living in another state as executor. In order to preserve or protect assets belonging to an estate, such as jewelry, silver, car, personal effects and other items of value from the decedent’s personal residence, an executor may need to remove the property for safekeeping during the administration of the estate.

• Foreign Personal Representatives and Ancillary Administration: Repeal Section 91-7-259, Foreign Fiduciaries, Lawsuits and Debts, and enact Foreign Personal Representatives and Ancillary Administration to provide a clear process for foreign personal representatives and ancillary administration. This amendment will bring Mississippi current with every other State in the nation.

Example: John is a resident of Alabama and dies in Alabama; however, John owns property in Mississippi. Ancillary administration law provides a clear process for John’s executor of his Alabama estate to collect and distribute the Mississippi property since he has already been appointed in another jurisdiction’s court of law. John’s executor will file in Mississippi the admitted will and his letters testamentary or letters of administration to begin the ancillary administration in Mississippi.

• Abatement: Enact a new statute to provide a statutory order of abatement when devises and bequests of the decedent must be used in order to settle the decedent’s debts, and no order has been provided in the will. Sections 91-7-91, 91-7-191, 91-7-195, 91-7-199, 91-7-261, and 91-7-271 will be amended to conform to the new enactment.

Example 1: John dies with a will that leaves his hunting land worth $100,000 to Jim and $100,000 cash to Jane. The residue of his estate ($50,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same, because Jane’s general bequest abates prior to Jim’s specific devise.

Example 2: John dies with a will that leaves his home worth $100,000 to his daughter, Jane; his hunting land worth $50,000 to his son, Jim; $5,000 to each of his two nieces; and his remaining property worth $40,000 equally to Jane and Jim. A creditor has a claim for $50,000. Unless John’s will provides otherwise, under current law, Jane gets the $100,000 home, Jim gets the $50,000 hunting land, and the nieces receive nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same because residuary and general legacies abate before specific bequests and devises.

Example 3: John dies with a will that leaves his hunting land worth $100,000 to Jim and his stock in his business worth $100,000 to Jane. The residue of his estate ($100,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives $50,000. There is no residue to divide between Jane and Jim. Under the proposed bill, both Jim’s and Jane’s specific legacy would abate equally without regard to the distinction between real estate and personal property, so they would both receive $75,000.00.

• Creditor Rights With Respect to Beneficial Interests in Trusts: Repeal the Family Trust Preservation Act (Sections 91-9-501 through 91-9-511) and enact Article 5 of the Uniform Trust Code so that the language and defined terms are the same as currently provided for in the Mississippi Trust Code. Some specific new issues are addressed as follows:

Example: John sets up a revocable trust. Under Article 5 of the Uniform Trust Code, John’s assets in the revocable trust would be subject to the claims of creditors.

Example: Jane sets up a life insurance trust on her life for her son with withdrawal rights. Jane’s payments to the trust are not subject to her son’s creditors unless the son decides to withdraw the money and compromise the life insurance policy. The fact that the son does not contribute to the trust does not mean it’s self-settled.

• Muniment of Title: Amend Section 91-5-35 to allow a will to be admitted to probate as a muniment of title by filing a signed and sworn petition signed by either the personal representative or the spouse and beneficiaries of real property and to increase the value of the probate estate to $100,000. This statute allows the transfer of real property without the necessity of probate when the decedent’s probate estate is $100,000 or less.

Example: Jane dies leaving a will devising real property located in Mississippi to her son, Jim. If Jane’s estate, not including real estate or exempt property, totals $100,000 or less, the transfer of property is the only reason the will would need to be probated, and all Jane’s debts have been satisfied, Jim may file a sworn petition in chancery court asking the court to recognize the will as valid solely to transfer the real property without
the necessity of probate.

• Vouchers, 3 Appraisers, and Inventory: Remove requirements regarding vouchers and an appointment of three appraisers when conducting an inventory. Provide that an inventory may not be required if waived in the will. Amend Sections 91-7-93, 91-7-95, 91-7-109, 91-7-117, 91-7-135, 91-7-141, 91-7-277, 91-7-291, and 91-7-297. Repeals 91- 7-111, 91-7-113, 91-7-115, 91-7-137, 91-7-139, 91-7-279.

• Uniform Disclaimer of Property Interest Act: Repeal Sections 89-21-1 through 89-21-17) the prior version of the Uniform Disclaimer of Property Interests Act adopted in Mississippi in 1994 and replace with the current version as last revised or amended in 2010. The more recent version of the Uniform Disclaimer of Property Interests Act addresses not only disclaimers of property but also disclaimers of powers over property and disclaimers of powers held in a fiduciary capacity. It also addresses different types of interests in property, including interests in jointly-held property. The provisions of the more recent version of the Uniform Disclaimer of Property Interests Act provide much more detail on the form of the disclaimer, delivery of the disclaimer and the effect of the disclaimer.

• Example: In John’s will, John designates his brother, Bob, as executor of his estate and trustee of a trust for his surviving spouse. The terms of the testamentary trust provide that John’s wife is entitled to all of the income of the trust during her lifetime. Bob is also given the power, in his discretion, to invade principal for the benefit of the surviving spouse and John’s descendants. The power to make distributions to the descendants
would prevent the trust from qualifying for the federal estate tax marital deduction. In the interest of all of the beneficiaries of the trust and to qualify the trust for the federal estate tax marital deduction, Bob can disclaim the power to make discretionary distributions to John’s descendants during the lifetime of John’s surviving spouse.

• Revocation by Divorce: Enact new statute to provide for automatic revocation of probate and nonprobate transfers upon divorce.

Example: John provided for his wife, Jane, in his will. John also named Jane as the beneficiary of his IRA and life insurance policies. John and Jane divorce, but John forgets to remove Jane from his IRA and life insurance policies. Under this law, all provisions for a former spouse in probate and nonprobate transfers, like a will, trust, IRA, insurance, payable on death account, etc. will be automatically revoked.

Tax Treatment of Alimony is Changing Soon

October 29, 2018 § 2 Comments

Effective after December 31, 2018, alimony will no longer be deductible by the payor, and will no longer be income to the payee. That’s per the “Tax Cuts and Jobs Act” passed by Congress earlier this year.

The law refers to “divorce agreements executed” after December 31, 2018, which would seem to indicate that if you have a PSA executed by the parties on December 29, 2018, the payments would maintain their deductible/income character, but at least one tax expert whom I asked said that the law requires a judgment or decree either adjudicating alimony as a contested issue or incorporating an agreement.

Also, any judgment modifying alimony after the cutoff date will cause the alimony to lose its deductible/income character.

So here are some ramifications for Mississippi practitioners:

  • If you’ve been dragging out that divorce case and the current alimony treatment is important to your client, you’d better get moving; you’ve only got two months left until the change.
  • You need to think twice about modification, especially if you represent the payor. Even a slight modification of alimony after the cutoff date will cause it no longer to be deductible.
  • The parties will no longer be able to agree to deductibility or non-deductibility, or taxability or non-taxability. All alimony is non-deductible and non-taxable, no matter what the parties agree.
  • It will no longer make any sense to craft hybrid alimony provisions because taxability is no longer a factor.
  • The court is required to consider the tax consequences under the Armstrong factors. Keep that in mind as you prepare your witness list. You might want to prepare a stipulation for the court as to taxability of alimony.
  • I think this will: (a) make alimony more difficult to negotiate, and (b) have a depressing effect on amounts of alimony awarded and agreed.
  • I believe this also applies to separate maintenance, but that’s my opinion.

It’s not too soon to sit down with a tax specialist who can advise you of the consequences of this change. This has drastic strategic consequences for divorce lawyers and their clients.


Affidavits in Chancery

October 10, 2018 § 4 Comments

An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.

There are several affidavits that we use routinely in chancery:

  • Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
  • Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
  • Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
  • Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
  • Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
  • UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
  • Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
  • Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “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 a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”

No UCCJEA Affidavit? Is That a Problem?

June 27, 2018 § Leave a comment

One would think by now that every pleading seeking child custody would include a UCCJEA affidavit as required by MCA 93-27-209(1). Yet, every now and then an affidavit-less petition or counterclaim wends its way to court and before we commence the hearing there is a motion to dismiss for failure to comply with the statute.

That’s apparently what happened in the custody case between Elle Adams and John Leon Rice. After the chancellor ruled that Mississippi properly had jurisdiction and the case proceeded to its conclusion in which the court awarded custody to John, Elle appealed.

In Adams v. Rice, decided by the COA on June 12, 2018, Elle raised a number of issues, among them the claimed failure to file the UCCJEA affidavit. Judge Barnes penned the opinion for the unanimous court:

¶28. Elle also argues that certain “required disclosures” pertaining to jurisdiction were not filed; therefore, the chancellor should have dismissed the action. Mississippi Code Annotated section 93-27-209(1) (Rev. 2013) provides that, in child-custody proceedings, each party in its first pleading or in an attached affidavit must provide certain information under oath as to the child’s present address and other matters. Elle cites White v. White, 26 So. 3d 342 (Miss. 2010), a child-custody modification case, as support. In White, even though the petitioner failed to provide this information, the Mississippi Supreme Court found it was not fatal to jurisdiction for two reasons: the chancery court’s jurisdiction is set by the Mississippi Constitution and cannot be diminished by statute; and under the plain language of section 93-27-209(2), the court is not required to stay the proceedings. [Fn 12] Id. at 347 (¶13).

[Fn 12] The statute states: “If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.” Miss. Code Ann. § 93-27-209(2) (emphasis added).

¶29. John provided this information in his initial petition. In his petition to modify custody, he could not provide the information because, as he explained, he was unaware of where Elle and Aaron were residing at that time. Elle, in response, claimed that she did not reveal her address and other information in her initial answer or in this action due to the Alabama protection orders. Since any failure to provide this information is not fatal to jurisdiction, and it is within the discretion of the chancellor to go forward with the proceeding, this argument is without merit.

That word may in the statute means that it is discretionary with the judge. Most judges are pretty level-headed and can be trusted to do the rational thing. There are a few, though, who might give you a funny (not funny ha-ha) bounce that might be somewhat unpleasant. My suggestion is that you always include a UCCJEA affidavit in a pleading where there is a custody issue, even when your client can not provide all the required information. Just aver that after diligent inquiry he or she has been unable to discover the information.

Pending Legislation that Might Impact Your Chancery Practice

January 24, 2018 § 3 Comments

Every year the judges receive updates from the Administrative Office of Courts (AOC) of pending litigation that could affect the judiciary. This year’s first roll-out consists of 49 pages. That may not be a record, but it impresses me as more than usual.

Here is a list of introduced bills that I believe may affect chancery court, based solely on the descriptive statement in the material provided to us. I have not read these bills because many of them will fall by the wayside as the session rumbles along. Some may not even pertain to chancery.

You can access links to the texts of these bills at this link.

HB 132       Adverse possession cases; require losing party to pay court costs and attorney’s fees.

HB 238       Mineral interests; revert to surface owner after certain period of time.

HB 270       PERS; no benefits to retiree while serving as consultant or advisor to state. (Will this affect Senior Judges?)

HB 277       Power of attorney; authorize to become effective upon a future event.

HB 282       Child support arrearage; require electronic house arrest as punishment for contempt.

HB 419       Mental Health Courts; authorize to be established throughout the state.

HB 434       Authorize AOC to fund mental health courts

HB 471       Create task force to address the disparity of African-American males in the judicial system.

HB 528       Uniform Partition of Heir Property Act.

HB 546       Require possessor to notify chancery clerk before title vests by adverse possession.

HB 548       Revise Landlord-tenant law re non-payment of rent.

HB 549       Authorize cemeteries to acquire a convenient right-of-way for relatives.

HB 550       Authorize jointly-owned real property to be sold by a realtor.

HB 554       Require chancery clerks to maintain a will registry.

HB 579       Require chance for borrowers to modify loans before foreclosure.

HB 606       Previously-married applicant must provide divorce or annulment judgment for marriage license.

HB 609       Contracts must be written in large print.

HB 632       Courts prohibited from requiring identification.

HB 648       Chancery court may commit certain persons to a mental facility.

HB 671       Arbitration clauses nonbinding in certain contracts.

HB 674       Chancery clerk to remove SSN from deeds.

HB 681       Revise home study and residence requirements in adoptions.

HB 692       Abolish the tort of alienation of affection.

HB 762       Allow opt-out of arbitration in certain consumer cases.

HB 777       Revise certain evidentiary standards.

HB 797       Increase value of homestead exemption.

HB 801       Allow emergency placement of children in home of relative.

HB 810       Clarify service of process on in-state charities (Statutory revision of MRCP 4?)

HB 908       Revise appeals from domestic abuse protection orders (DAPO’s).

HB 913       Add a chancellor to the Third District.

HB 930       Require continued grandparent visitation rights when visitation unreasonably withheld.

HB 962       Revise requirements to file petition for grandparent visitation rights.

HB 1002     Repeal adverse possession.

HB 1022     Require recorded instruments to be in English.

HB 1081     Clarify venue for nonresident corporations.

HB 1084     Terminate parental rights for children conceived of rape.

HB 1090     Revise deadline for recording deed when deadline occurs on a weekend.

HB 1092     Restrict certain technologies from accessing personal communications and information.

HB 1151     Revise withholding and payment of child support.

HB 1169     Define personal property.

HB 1170     Authorize chancery court to award sibling visitation.

HB 1186     Owner of separate, nonproducing mineral interest liable for portion of ad valorem taxes.

HB 1218     Civil actions against real estate appraisers are barred.

HB 1231     Establish fundamental right to direct upbringing of children (parental rights).

HB 1237     Suspend child support obligation during incarceration.

HB 1245     Court may assess costs against dismissed party.

HB 1281     Same as HB 1084

HB 1287     Revise grounds for TPR.

HB 1291     Limitations on imprisonment for contempt for non-payment of child support.

HB 1292     Authorize debtor’s prison for non-payment of fines, fees, and assessments.

HB 1293     Revise power of attorney delegating care and custody of children.

HB 1296     Additional chancellor for the Tenth District.

HB 1300     Director may not withhold admittance of patient with mental commitment order.

HB 1308     Power of attorney exception for certain designation of spouses.

HB 1320     Revise fees for successful paternity action.

HB 1340     Add separation as 13th ground for divorce.

HB 1410     Revise factors for award of child support.

HB 1440     Require DHS recipients who receive child support to provide list of expenses.

HB 1446     Make child advocacy center information confidential.

HB 1465     Establish domestic abuse court program.

SB 2044     Expand authority of Chief Justice to appoint special judges.

SB 2067     Failure to pay GAL fees enforced as any other civil debt.

SB 2232     Allow protection of pets in a DAPO.

SB 2246     Revise landlord-tenant law.

SB 2317     Retired judges may perform marriages and obtain a free pistol license.

SB 2347     Court may order disbursement of ward’s funds under certain circumstances.

SB 2348     Court may waive annual accounting in guardianships under certain circumstances.

SB 2392     Same as HB 471.

SB 2423     Clarify right of parent to nominate GAL in a TPR case and clarify the fictive kin disposition alternative.

SB 2473     Revise the landlord-tenant act to give more protection to landlords.

SB 2493     Establish the State Truth Commission.

SB 2508     Revise definition of personal property.

SB 2522     Revise guidelines for child support.

SB 2542     Allow chancellors to increase child support based on financial ability of parties.

SB 2544     Expand authority of Chief Justice to appoint special judges.

SB 2557     Revise age of majority.

SB 2617     Create civil and criminal liability for unlawful disclosure or promotion of “intimate visual material.”

SB 2620     Bona fide separation as ground for divorce.

SB 2657     Same as HB 548.

SB 2662     Statute of limitations for actions re real estate appraisals.

SB 2682     Require birth certificates to show biological parent as well as spouse.

SB 2685     Prohibit noncompete clauses in physician contracts.

SB 2765     Allow third-party visitation in certain circumstances.

SB 2782     Revise parties entitled to notice in muniment of title.

SB 2802     Prohibit application of foreign law in courts.

SB 2809     Allow administrative suspension of child support for incarceration longer than 180 days.

Jurisdiction to Modify Child Custody

November 27, 2017 § Leave a comment

Ever since the ancient case of Reynolds v. Riddell, 253 So.2d 834 (Miss. 1971), the law in Mississippi has been that once a Mississippi court enters a judgment awarding custody, that court in that particular chancery district retains exclusive jurisdiction to modify and enforce its judgment between parties continuing to reside in the state, even if one or both parties have relocated to other counties.

The sole exception is a Habeas Corpus proceeding, which must be brought in the county where the children are located. Bubac v. Boston, 600 So.2d 951 (Miss. 1992). Habeas, however, is a temporary action that does not confer continuing jurisdiction on the Habeas court, and does not actually effect a permanent modification. Id. at 955; See also, Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).

Reynolds did provide an escape hatch: if the chancellor finds that the matter is inconvenient in the original county, due, say, to the relocation of the parties, she can transfer the action to another county. Reynolds at 837.

Against this backdrop, we consider whether it is proper for the chancery court in one custody modification action before it to, in effect, transfer the modification to another child custody action pending before it. That’s what the chancellor did in the custody dispute between Kelly Burge and the two fathers of her children, Chad Sharff and Craig Burge. Sharff had filed for modification of custody of his son. Burge filed for modification of a prior divorce judgment between him and Kelly, seeking custody of his son.

In the course of the custody cases, the chancellor dismissed Chad’s claims and consolidated cases as described below. The chancellor awarded custody of all of the children to Craig, and Kelly appealed.

One issue Kelly raised was that the chancellor had authority only in her original divorce action to modify custody, and that it was error for him to consolidate it into another custody case not arising from the divorce. In Burge v. Burge and Sharff, decided August 1, 2017, the COA affirmed. Judge Barnes penned the opinion for a unanimous court:

¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. She claims that because Craig lacks standing in the Sharff divorce, no motion for modification survived, and the chancery court lacked grounds and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody of her four minor children by misuse of the procedural process. We are not persuaded by this argument.

¶46. Initially, Chad filed a petition to join Craig’s case “for just adjudication,” and requested Craig have custody of the children so as not to separate them. Alternatively, Chad requested he have custody. Approximately ten months later, Chad filed a petition to modify child custody in his own case, requesting legal and physical custody of his two children, since a material change in circumstances had occurred – the Burge divorce proceedings. He also filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence would be presented in both cases to determine custody. Likewise, Craig filed a motion to consolidate his case with Chad’s case, and before trial began, the cases were consolidated.

¶47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal of Chad’s custody-modification action under Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at trial to forward his claim. [Fn omitted] Indeed, Chad had not been physically present during the trial since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for custody of his children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody.

¶48. From this ruling, Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. She contends the involuntary dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must remain in Kelly’s custody. We disagree.

¶49. In Professor Deborah Bell’s family-law treatise, she states:

A petition to modify . . . [a] custody . . . order must be filed in the court that issued the decree. As between the parties in the original action, the issuing court’s jurisdiction is exclusive, precluding any other court in the state from exercising jurisdiction over the case. . . . However, if an issuing court finds that adjudication in another court would be more efficient, jurisdiction may be transferred to that court.

Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear a custody case apart from a divorce action. [Fn 10] Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. According to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children resided in Lamar County in both actions, which is where custody between the natural parents has already been adjudicated. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody – something the court could grant – and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. [Fn 11] Kelly has not cited any authority to the contrary. This issue is without merit

[Fn 10] Section 93-11-65(1) provides that the chancery court of the proper county has jurisdiction to hear and determine suits for custody of minor children. “Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child.” The action shall be brought in the county where the child is actually residing, or in the county of the residence of the party with actual custody, or in the county of the residence of the defendant. “Process shall be had upon the parties as provided by law . . . .”

[Fn 11] Even if the action had been filed in a different chancery court, the chancellor could have transferred the action. Here, the actions were merely consolidated as they were already in the same court.

Conclusion: not error to consolidate the cases into a case different from the original judgment sought to be modified. Here, the chancellor ordered the consolidation, which was equivalent to a transfer under Reynolds. I think the best practice always is to get an order of the chancellor consolidating.

More on Moving the Ward

November 20, 2017 § 2 Comments

In a previous post I talked about the measures you need to take when you are moving a ward in a guardianship or conservatorship from Mississippi to another state. That earlier post is at this link.

The statute I cited in that earlier post is still on the books, but now there is a uniform law that provides a modern procedure recognized in many other jurisdictions.

In 2014, Mississippi adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (MCA § 93-14-101, et seq.), which establishes procedures recognized among the participating states for transfer of guardianships, protective proceedings, registration of orders from other states, and communication between courts. There is even a provision for emergency, temporary jurisdiction over a respondent from another state who is in this state at the time of the emergency.

Situations involving conservatorships and adult guardianships are becoming more frequent, and the need to move wards to the state where the children are now located is more and more prevalent. This chapter will help you do that.


Thanks to Attorney Mark Scarborough



Joint Custody Outside of Divorce, Part Deux

November 15, 2017 § 1 Comment

Yesterday we visited the situation where the natural parents in a paternity suit were awarded joint custody of their child. It was deemed okay by the COA.

Today we consider whether the chancellor may award joint custody between paternal and maternal grandparents in a case where both are claiming custody due to unfitness of the natural parents. That’s what happened between Monica Darby (paternal) and Harold and Karron Combs (maternal).

The chancellor awarded the grandparents joint custody, and Monica appealed. The COA affirmed in Darby v. Combs on October 25, 2016. Monica filed a petition for cert, and the MSSC granted it.

On November 9, 2017, the MSSC affirmed the COA in Darby v. Combs. Justice Maxwell wrote for a 6-2 court, with Ishee not participating:

¶23. Chancellors have jurisdiction to make custody decisions. See Miss. Const. art. 6, § 159; see also Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 436 (1943). And their decisions must be made with an eye on the best interests and welfare of the child. Albright, 437 So. 2d at 1005; Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (extending the coverage of the Albright decision to all original custody decisions)). Here, the Court of Appeals correctly recognized this notion, explaining “[i]n a custody contest between third parties,where neither party has a superior right to custody of the child, the child’s best interests and welfare are the polestar consideration.” Darby, 2016 WL 6276610, at *7.

¶24. With Addie’s best interests in mind, and in light of his finding that Crystal and Andrew were unfit parents, the chancellor consulted Section 93-5-24(1)(e). This statute clearly permits third-party custody arrangements. Under Section 93-5-24(1)(e):

Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome and stable environment; or

(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and
guidance for the child.

Miss. Code Ann. § 93-5-24. So, based on his finding of parental unfitness, the chancellor was statutorily empowered to fashion a third-party-custody award. Monica does not seriously contest the chancellor’s authority to grant third-party custody. What she argues is that the chancellor lacked authority to craft a third-party joint custody award.

¶25. As support, Monica latches on to the use of the word “person” and the phrase “any other person” in Section 93-5-24(1)(e)(i) and (ii). She insists this singular language makes clear that only one person or party may receive custody. So as she sees it, joint custody awards are not allowed between third parties under Section 93-5-24(1)(e)(i) and (ii). She suggests the definition of joint physical custody in Section 93-5-24(5)(c) supports her interpretation. [Fn omitted] We disagree.

¶26. First, it is obvious Subsection 93-5-24(5)(c) contemplates joint physical custody between “parents.” And here, the chancellor deemed Addie’s parents unfit for custody.

¶27. Second, Monica overlooks—and our statutory law instructs—that “[w]ords used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number . . . except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). And we see no contrary intention manifested within the statute.

¶28. Indeed, Section 93-5-24(5) concludes by explaining that “[a]n award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child and . . . the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities, and authority.” So, Section 93-5-24(5) suggests that joint physical and legal custody may be awarded to either parents or parties. Thus, we find no legal error in the chancellor’s statutory application.

¶29. As we recognized in Crider, the overarching consideration in Section 93-5-24 is that “[c]ustody shall be awarded as follows according to the best interests of the child.” Crider v. Crider, 904 So. 2d 142, 144 (Miss. 2005). And here, we cannot say the chancellor’s custody award was against Addie’s best interest.

II. Cooperation for Joint Custody

¶30. Monica next suggests the chancellor erred by awarding joint custody without making an express finding that the parties could cooperate as Addie’s joint custodians. We disagree. As discussed, the chancellor carefully walked through the Albright factors [Fn omitted] and crafted a
workable third-party custody arrangement.

¶31. Though joint custody between third parties may not typically be preferable, this is a difficult and, as the chancellor put it, “unusual” case. Facing the realities of obviously unfit parents and a neglected child, the chancellor did what he was duty bound to do—he consulted Section 95-5-24 and keyed in on the child’s best interest and welfare. [Fn omitted] The severity of Andrew’s drug problems, mental-health issues, and violent tendencies and Crystal’s extensive drug and alcohol abuse required the chancellor look elsewhere for custody arrangements.

¶32. When parents cannot agree on who should have primary custody of the children, this Court has suggested “it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible.” Waller v. Waller, 754 So. 2d 1181, 1184 (Miss. 2000) (emphasis added). [Fn omitted] The dissent basically stretches this language into a new affirmative requirement, essentially grafting a non-Albright factor onto the Albright test. And it concludes remand is necessary because the chancellor did not make an “express determination of whether the parties can cooperate in exercising joint custody.” We agree this consideration is certainly relevant. But by no means did Waller create a new mandate that chancellors make this “express determination,” or else a joint-custody award and Albright analysis will be legally lacking and require remand for additional findings. Rather, the Waller court, citing an American Law Report on joint-custody awards, suggests in a footnote that chancellors make joint custody awards where the parties are able to cooperate. Id. at 1184 n.1 (citations omitted).

¶33. Here, the chancellor rejected the GAL’s recommendations and carefully weighed the Albright factors and statutory law, deciding a joint-custody award was “the safest route” to protect Addie from potential violence. He had no qualms that Monica and the Combses could carry out this arrangement. If he had felt a joint-custody arrangement was unworkable, he would not have fashioned one. After review, we find no error in the chancellor’s joint custody award.


  • Joint custody keeps embracing more and more relationships. It goes well beyond the marital relationship based on yesterday’s and today’s reported decisions.
  • I included the discussion about ability to cooperate because I think there’s been some confusion over whether it is a threshold requirement. To me it has been more of a disqualifying factor; i.e., where the evidence is clear that there can be no cooperation, I rule joint custody out. I do not require affirmative proof of cooperation, however, before awarding joint custody.
  • One form of joint custody I am seeing — and strongly resisting — is joint custody (50-50) in PSA’s with no child support. I think joint custody is being used that way in many cases as a “business decision” with non-payment of child support as a bargaining chip. Joint custody, however, should be about providing the safest, most secure, most nurturing environment in the best interest of the child rather than a justification for no child support. When you link money with the joint custody arrangement, the sweet aroma changes to a foul odor.  I don’t like it a bit. And, for you lawyers who push this idea, you are creating a new, potent avenue for “divorce blackmail” that can blow up in your face when you are on the opposite side of the issue.

Moving the Ward

October 17, 2017 § 3 Comments

The guardian whom you represent drops by to pay on her bill and nonchalantly reports that “We had to move momma to a rest home over in Lisman, Alabama. We think she’ll be happier there.” After she departs, you begin musing whether something should have been filed in court.

Well, you would do well to study MCA 93-13-63. It reads, in its entirety:

If a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect; but the guardian shall first give a bond, with two sufficient sureties residing in this state, in the full value of the ward’s personal estate, conditioned that he will qualify as guardian of the ward in the state or country to which he intends removing, and will there present and file in the proper court a complete inventory of his ward’s property and effects; and, on failure to comply with the condition, the bond may be put in suit for the benefit of the ward.

My, that’s a lot to do. First, a petition must be filed seeking authority. Second an accounting must be filed. Third, the guardian must post bond with two Mississippi sureties in the value of the ward’s estate conditioned on his qualification as guardian in the state to which the ward is to be moved, and on condition that he will file a complete inventory of the ward’s property and effects in that court. And, on failure to comply, the bond “may be put in suit” for benefit of the ward.

So, yes, there are plenty of procedural hoops through which you and the ward must cavort in order to achieve your aim. I’m not aware of a case on point, but I would think that failure of the guardian to comply with the statute might well put her original bond in jeopardy. And if she entered into a contract with the Alabama facility without approval of the court, the court could assess the expense against her. Who was providing the guardian with legal advice while all of this was happening?

Change the scenario above to a movement of the ward from Quitman, in Clarke County, to Brandon, in Rankin County, without prior court approval. Any problem with that?

MCA 93-13-61 tells what is supposed to be done:

If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian. And when he shall produce to the court which originally appointed him the letters of guardianship from the court of the county to which he has removed, and make a settlement of his guardianship accounts, he may be discharged from his original bond; and thereafter he shall present his inventories and accounts to and be under the control of the court of the county to which he has removed. And the clerk of the court in which the settlement was made shall transmit a certified copy of the settlement, at the cost of the guardian, to the clerk of the court in which he was last appointed.

First, file a petition and obtain an order. The order can direct removal of the case to the destination county, or the original court can retain jurisdiction. Then follow the procedure step by step. It’s fairly straightforward.

By the way, all of the above pertains to conservatorships also.

This is something that I have run across too many times in my court. Lawyers are not aware of the statutes, and so don’t advise their clients.

The main thing is that you can not remove a ward to another county or state without first obtaining authority from the court to do so. It’s your duty to advise your guardian or conservator.

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