Statutes | The Better Chancery Practice Blog

Adverse Possession Refresher

July 24, 2013 § 6 Comments

The COA decision in Roberts v. Young’s Creek Investments, Inc., decided July 16, 2013, is yet another decision in the field of adverse possession that you should file away for future use the next time that you find yourself litigating that issue in chancery court.

All adverse possession cases are fact-driven, and this particular case is no exception. But it’s not the facts we’re interested in here. It’s the law. Here are some excerpts from the opinion that flesh out the legal requirements:

¶7 “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152-53 (Miss. 1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So. 3d 1134, 1137 (¶6) (Miss. Ct. App. 2012) (citing Buford v. Logue, 832 So. 2d 594, 600 (¶14) (Miss. Ct. App. 2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So. 2d at 136 (¶16).
Claim of Ownership. ¶8. Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007) (citing Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998)). The Mississippi Supreme Court has stated:

When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.

Id. at (¶8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.
Hostile. ¶10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So. 2d 817, 819-20 (Miss. 1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So. 2d 983-94 (¶34) (Miss. Ct. App. 994 (¶34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So. 2d at 1118 (¶12).
Open, Notorious, and Visible. ¶13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”Wicker, 937 So. 2d at 994 (¶35) (quoting Blankinship, 605 So. 2d at 820).
Continuous and Uninterrupted for a Period of Ten Years. ¶14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years.See Miss. Code Ann. § 15-1-13(1) (Rev. 2012). This period of possession must be continuous and uninterrupted. Id.
Exclusive. ¶15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.”Wicker, 937 So. 2d at 995 (¶40) (quoting Rawls v. Parker, 602 So. 2d 1164, 1169 (Miss. 1992)) (internal quotations omitted). It does not mean that no one else can use the property.Apperson, 950 So. 2d at 1119 (¶15). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).
Peaceful. ¶16. … Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So. 2d 1004, 1009 (¶15) (Miss. 2001).
Permissive Use. ¶17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So. 3d 846, 849 (¶11) (Miss. Ct. App. 2012).
Color of Title. ¶18. … “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug. 1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.”Id. at 474. … The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property.

A checklist for the elements adverse possession is here.

A COA decision by Judge Carlton analyzing adverse possession elements is here.

A COA decision by Judge Roberts discussing some of the adverse possession factors is here.

I was glad to see Judge Irving, for the COA, point out that color of title is not one of the elements of adverse possession. I hear it mentioned in nearly every adverse possession case I hear, and sometimes the contortions people go through to squeeze the facts into that element can be interesting to watch. Color of title may enter into the conversation when there is a defect in the deed conveying title that gives rise to the dispute, but it’s not one of the elements that the court must consider in every adverse possession case.

I don’t know about you, but when I practiced, I could not amass enough cases to help me understand those arcane phrases about unfurling flags and keeping them flying, and that an “enemy has invaded his domains,” and the planting of a standard of conquest, to make me feel comfortable. Every time I encountered an adverse possession case I had images of cavalry charges, bloody banners falling in the clash of arms, and castles stormed by medieval knights.

Termination in the Best Interest

July 23, 2013 § Leave a comment

The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.

In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:

¶9. Relevant to the case at hand, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:

….

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …

The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:

[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .

It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.

Grandparent Visitation: How Much?

July 18, 2013 § 2 Comments

In most cases, grandparent visitation should not be as comprehensive or extensive as that of natural parents. Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).

But just what amount of visitation is reasonable for grandparents? Here is a collection of cases addressing the question:

Settle v. Galloway, 682 So.2d 1032 (Miss. 1996). The MSSC affirmed an award of alternating weekends, plus Easter and Thanksgiving in alternating years. The court pointed out that grandparent visitation on alternating weekends would probably be excessive in the usual case, but that it was appropriate in this particular case because the non-custodial parent was in the military and could not exercise his usual visitation.
Martin v. Coop, 693 So.2d 912 (Miss. 1997). The MSSC reversed an award of 86 days in even-numbered years, and 81 days in odd-numbered years. The court found that “Grandparents do not stand in lieu of or in the shoes of the deceased parent,” and “[V]isitation granted to grandparents should not be the equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id., at 916.
Zeman v. Stanford, 789 So.2d 798 (Miss. 2001). In a case where the non-custodial parent was incarcerated, and was unable to exercise any visitation, the MSSC affirmed a chancellor’s award of one weekend per month, finding that the situation was analogous to the Settle case, supra.
Woodell v. Parker, 860 So.2d 781 (Miss. 2003). Affirmed the chancellor’s award of: one weekend per month; every other Spring Break/Easter holiday; the Friday and Saturday following Thanksgiving; the five days following Christmas; two weeks during the summer; and regular telephone and “postal” access. Id., at 790.
T.T.W. v. C.C. and J.C., 839 So.2d 501 (Miss. 2003). The court remanded for a full consideration of the Martin factors in a case where the parents resisted visitation due to the grandparents’ interference with parental decisions and discipline. Interestingly, the court suggested that, “on remand the chancellor might consider options other than a wholesale grant or denial of visitation,” and pointed out that supervised visitation might alleviate many of the problems that had arisen. Id., at 506.

Remember that the amount and extent of grandparent visitation may only be determined by the trial court after application of the Martin v. Coop factors.

Visitation may be modified “for cause.” MCA 93-16-5; Rose v. Upshaw, 69 So.3d 74, 79 (Miss. App. 2011).

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

A Shortcut for Attorney’s Fees?

July 15, 2013 § 3 Comments

We’ve talked here before about what it takes to make a record on attorney’s fees that will withstand scrutiny on appeal. Here’s a link to one such post among many. As I’ve said, it should be a subject of vital interest to attorneys who spend any time in court.

Did you know that there is actually a shortcut to proving attorney’s fees?

Here it is … MCA 9-1-41:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

That would seem to be pretty clear, then. No proof as to reasonableness is required, and the court makes its award “based on the information already before it and the court’s own opinion based on experience and observation …, ” with the proviso that you can put in other evidence to support the award.

Does this mean that the McKee factors need not be considered? Not necessarily. In the case of Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 54 (Miss. 1998), in a case dealing with attorney’s fees on an open account, which has its own particular body of law, the MSSC said, “This does not mean these factors are not relevant, just that proof of them is not required before a court awards attorney fees. This Court does not leave the reasonableness of an award for attorneys’ fees to the arbitrary discretion of the trial court.”

I think you can take from the Par Industries case that the appellate courts require the trial judge to flesh out how she arrived at a determination of reasonableness, and how the court calculated what the fee will be. In other words, a blanket award like “Plaintiff is awarded $5,000, which the court deems reasonable,” will not do the job. But an award that spells out what the court considered in making its decision will (or should).

Still No Retroactive Downward Modification of Child Support

July 1, 2013 § 1 Comment

Every now and then I hear testimony that the party wants me to extend downward modification of child support retroactively, either to the date of filing, or to the date of the event that warranted a reduction in child support.

The answer, as you probably know, is that Mississippi law has long barred retroactive downward modification in child support cases.

In the COA case of Frazier v. Frazier, handed down June 25, 2013, appellant Paul Frazier asked the appellate court to change the rule and allow retroactive reduction, although he apparently had not pled for it at the trial-court level, and he acknowledged his uphill climb on appeal. Judge Fair stated the unanimous court’s opinion:

¶19. Though he did not affirmatively seek retroactive modification of the child support that he did not pay in full, Paul asks this Court to deviate from both long-established case law and legislative mandate and grant him retroactive relief. He begins his brief on appeal by admitting:

This is a case about the retroactive modification of child support. A husband sought a change in support because he had lost his job and was making considerably less than at the time of divorce. The trial court modified the child support. However, it took well over a year to obtain the relief, and in the meantime the husband incurred heavy child support obligations he could not meet.

Despite ordering a modification, the trial court did not order a reduction in his past due child support, even though the husband . . . had timely filed and pursued the modification. In the interests of equity and public policy, the Court must fashion a remedy for good faith litigants who are forced into extreme situations like this one.

¶20. Recently, in A.M.L. v. J.W.L., 98 So. 3d 1001, 1016-17 (¶¶40-42) (Miss. 2012), the Supreme Court of Mississippi addressed that specific issue and manifested its intent to continue adherence to its prior line of cases as well as defer to the statutory provisions of Mississippi Code Annotated section 43-19-34(4) (Rev. 2009), which allows retroactive increases in child support but expressly prohibits retroactive decreases.

¶21. Paul asks us to essentially repeal that statute and overrule a long line of supreme court authority, or at the very least to carve out an exception for decisions unduly delayed through no fault of the obligor. He admits, however, that:

Over twenty years ago, the Supreme Court determined that it would not allow a retroactive modification in child support on public policy grounds. Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990). The essential point was that a judicial decree ordered the child support, and a parent should not simply ignore it without leave of court. Id. “The rationale behind this view is not difficult to divine,” the Court held, since it wished to prohibit “self help” when a parent might seek to “modify his or her obligation with impunity.” Id.

After Cumberland, the Legislature saw fit to constrain retroactive modification further. It decreed that “[a]ny order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification.” Miss. Code Ann. § 43-19-34(4) (the same law allowed an upward retroactive modification).

Paul relies upon and quotes from the four-member special concurrence penned by Justice Pierce in A.M.L., which posits allowing retroactive downward modification at least sparingly and in cases of crowded dockets and dilatory tactics causing unreasonable delay. A.M.L., 98 So. 3d at 1024-25 (¶70). In this case a crowded docket is obvious, but there is no clear evidence of dilatory tactics on Sharon’s part. On the other hand, there is some indication Paul caused a significant delay by insisting on a subpoena before providing his military records. Moreover, dilatory tactics have been held as justifying other relief, including monetary relief, even in child support cases. That remedy was suggested in Cumberland and considered and declined by the chancellor in this case.

¶22. Downward retroactive modification of child support remains prohibited by both statute and stare decisis provided by our highest court, which we must follow.

The “monetary relief” mentioned by Judge Fair refers to footnote 6, at page 847, in Cumberland, which says: “Where the non-movant engages in dilatory tactics and causes unreasonable delay, the trial court should not hesitate to exercise its inherent powers and order sanctions as may be appropriate.” In a previous footnote, as well as in the body of its opinion, the court specifically ruled out retroactive reduction.

I might add that retroactive downward modification has another inherent impediment in that each installment of child support becomes vested and a judgment in favor of the payee as and when due, and may not be reduced or modified by the trial court. See, e.g., Brand v. Brand, 482 So.2d 236, 237 (Miss. 1996).

If Paul is to change the law, he will have to look to the MSSC to get that done, which will now require him to file for rehearing before the COA, and a subsequent petition for cert to the MSSC. He may be staking his chips on that four-member minority in A.M.L. and the hope that turnover in the meanwhile may produce a more favorable result. We’ll see.

IF ADULT DISABLED CHILDREN ARE TO RECEIVE POST-MAJORITY SUPPORT, THE LEGISLATURE WILL HAVE TO DO IT

June 7, 2013 § 6 Comments

The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”

A wrinkle in this case was that the case was brought as a modification action in chancery court by the mother acting as conservator of the child. The chancellor ruled that a modification action was not the proper vehicle, but he went beyond that and ruled that he had no authority to impose a post-majority obligation on the father. The supreme court affirmed on both points.

This is an issue that lawyers and judges have encountered and speculated about for many years, as long as I have been practicing. For a while the speculation was that the supreme court, given just the right set of facts, would impose that duty.

Yesterday’s decision would appear to lay that speculation to rest. If there is no common-law authority to draw on, and the court holds that there is a separation-of-powers impediment, that would be conclusive, in my opinion.

Justice King dissented, taking the position that the legislature has, indeed, given the courts all the authority they need in existing legislation. You can read his dissent and form your own conclusions. Dickinson, Kitchens, and Chandler joined his dissent.

There is an interesting footnote, number 5, on the eighth page of the opinion (¶ 13). Here’s the text:

The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:

The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month . . . .

Miss. Code Ann. § 43-31-28 (Rev. 2004) (emphasis added). We have held that “this statutory liability can only be enforced in the manner provided by statute.” Wright[et al. v. Coleman], [137 Miss. 699,] 102 So. [774] at 777 [(1925)].

Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss. Code Ann. § 43-19-33(3) (Rev. 2004) (“in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).

You might have known about those two provisions. I did not.

The issue of parental support for adult disabled children has many facets and ramifications. If it is to be addressed at all, it appears that the Mississippi Legislature, with all of its institutional wisdom and foresight, will be the body to do it.

ANOTHER REVENANT CASE

June 5, 2013 § 1 Comment

The COA case of Gordon v. Gordon, decided May 21, 2013, is the latest in that ever-growing body of jurisprudence that I refer to as “Zombie Law” (hereinafter “ZL”). These are cases that appear to have been laid to their final rest by the chancellor’s ruling, often with the full agreement of both parties, only to have them rise from their grave later via post-judgment issues and appeals.

Wanda and Charles Gordon entered into a statutory consent to divorce agreeing that the one issue for adjudication by the court was, “Whether or not [Charles] is entitled to receive money from [Wanda].” The COA opinion also states that the crux of the dispute was whether Wanda had misappropriated some $46,000 of marital funds, although it is unclear from the opinion whether that issue was expressly set out in the consent.

The chancellor heard the testimony on November 8, 2004, and concluded that there was inadequate information upon which to base an adjudication regarding the contested issue. On December 17, 2004, he entered a judgment that the trial be continued to a later date for more substantial evidence on the contested issue, and he said that he would ” … go ahead and grant the divorce …, just so that [Charles and Wanda] can get that out of the way.” The judgment stated that the chancellor would retain “jurisdiction to adjudicate those matters pertaining to the division of property and support and maintenance of the one remaining minor child of the parties” [Emphasis added]. The latter language was not included in the original consent.

On January 31, 2005, Wanda filed a motion to set aside the divorce judgment. The hearing on the motion was not held until November 16, 2010. The chancellor did set aside the divorce, and, in response to Charles’s motion to reinstate it, said that he would if Charles would withdraw his claim for the $46,000, which he did, at which point the chancellor entered his judgment of divorce nunc pro tunc to December 17, 2004.

Wanda appealed, claiming that the chancellor erred by not dividing the marital estate, including military retirement, and adjudicating child support and custody. The COA affirmed.

Here are a few points from the opinion:

Wanda’s argument rests heavily on the language of the consent statute, MCA 93-5-2, which states that “No divorce shall be granted … until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been adjudicated by the court …” She took the position that the chancellor had to address those statutory issues before adjudicating the divorce. The COA did not buy her argument. Notice the language of the statute, ” … raised by the pleadings …” In context, that would appear to apply to the consent, since the consent supplants the original pleadings. But be aware that the MSSC in McNeese v. McNeese, handed down April 25, 2013, held in yet another ZL case that, “The consent agreement at issue is not a motion, pleading, or a consent judgment …” Not sure how those two principles fit together, but in this case the COA did not agree with Wanda’s position.
The chancellor was right to set aside the divorce. The statute clearly states that no divorce may be granted until all of the contested issues have been adjudicated.
Wanda also claimed that the chancellor was in error in not ordering Charles to pay child support for her great-nephew, of whom she had custody per a S. Carolina judgment. Three guesses how that turned out.
I applaud the chancellor for refusing to go ahead and adjudicate the contested issue on scant, insufficient evidence.

If you want the chancellor to address a particular issue via consent, be sure that the statement of the contested issue clearly states what the judge is expected to decide. I am not convinced that the language, “Whether or not [Charles] is entitled to receive money from [Wanda]” does the job.

And a final lesson from this latest ZL case: It’s never over any more until it’s over, and even then it may not yet be over. The days of parties and lawyers sticking to their agreements and being held bound by them is sadly past, now merely a quaint reminder of the past like buggy whips and quill pens.

ESSENTIAL INGREDIENTS OF THE CONSENT TO DIVORCE

May 30, 2013 § 4 Comments

Kenton McNeese filed a pro se appeal raising the issue, among numerous others, whether the consent for an irreconcilable differences that he and his wife, Katye, had executed and presented to the trial court for adjudication was valid or not. He took the position that it was invalid, thereby depriving the chancellor of authority to grant the divorce. His appeal raised two issues for the MSSC to address regarding validity of the consent:

Whether or not the consent was in compliance with the statute; and
Whether the chancellor properly overruled Kenton’s motion to “expunge” or withdraw his consent.

In the case of McNeese v. McNeese, handed down April 25, 2013, Justice Coleman, writing for a unanimous court, summed it up about as well as it can be said:

¶13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. . . .

Miss. Code Ann. § 93-5-2(3) (Rev. 2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So. 2d 1121, 1124 (¶ 9) (Miss. 1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly [FN1] and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.

[FN1] Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss. Code Ann. § 25-33-17 (Rev. 2010).

¶15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. [Fn2] Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.

[Fn2] A consent judgment is a final judgment, more like an agreed order, which “must be approved and signed by counsel for all parties . . . before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.

¶16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev. 2004). See also McDuffie v. McDuffie, 21 So. 3d 685, 689 (¶ 7) (Miss. Ct. App. 2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jernigan v. Young, 61 So. 3d 233, 236 (¶ 14) (Miss. Ct. App. 2011). “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce. . . . What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So. 2d 353, 356 (¶ 11) (Miss. Ct. App. 1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.

It might be a good idea to look over the form you’ve been using for ID divorce consents to make sure it includes all of the required elements. Just because you’ve used it a hundred times does not mean that it complies with the statute.

Why is it important to be in line with the staturte? Well, there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid. You wouldn’t want that to cause the demise of a case you thought had been settled and done.

MAKING SCHOOL GUARDIANSHIPS LESS BURDENSOME

May 20, 2013 § Leave a comment

Guardianships of the person are a pretty common phenomenon in these parts, as they are, I am sure, wherever you might be. I call them “school guadianships,” because that’s what they traditionally were used for — to get children into particular schools, ordinarily via grandparents — within the tolerance of the school district involved.

As it stands now, MCA 93-13-38 requires a guardianship of the person to observe all of the same formalities as an estate, including notice to creditors, probate of claims, accountings, and so on, even though there is no estate whatsoever.

That’s going to change, effective July 1, 2013. HB 725, sheparded through by Rep. Greg Snowden, changed the statute to provide that:

“The requirements in a guardianship of the person are modified to the extent that notice to creditors is not required, reports will be made only as often as the court requires, and the guardianship may be closed without the need for any accounting unless otherwise determined by the court. Any assets that are received shall be reported immediately and at that point the guardianship shall be deemed to be a guardianship of the personand estate and all requirements for guardianship of the person and estate shall be followed.”

This is a welcome clarification and simplification. In this district we have been requiring reports every other year. The report is a simple, two-sentence statement that: (1) the guardianship is still necessary; and (2) no assets have come into the guardianship. We have found that eventually the ward reaches majority, and the lawyer files a report asking to close as no longer necessary. When I took office I found guardianships of the person that were as much as 25 years old that had never been closed. There’s no good reason for that. I asked Rep. Snowden to address this, and he did an effective job.

We have significant number of these, some of which should probably be converted to Special General Guardianships after those become effective July 1, 2013. Despite my “school guardianship” label, most nowadays involve grandparents taking grandchildren to raise, and needing a guardianship to obtain medical care, enroll in school, etc.

CHANGE TO THE CHILD SUPPORT GUIDELINES

May 8, 2013 § 2 Comments

MCA 43-19-101(e) has been amended, effective July 1, 2013, to provide that:

“In cases in which the adjusted gross income as defined in this section is more than One Hundred Thousand Dollars ($100,000) or less than Ten Thousand Dollars ($10,000), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.”

Right now the figures are $50,000 and $5,000.

This change is a recognition of changing economic realties. The original figures were established by the legislature in 1989 — 24 years ago.

Where Am I?