MORE ABC’S OF GRANDPARENT VISITATION
May 8, 2012 § Leave a comment
We’ve talked here and here about who are the necessary parties in a grandparent-visitation case under MCA 93-16-3. Here is a link to a post on the ins and outs of grandparent visitation.
After the petitioner has established entitlement to grandparent visitation under the statute, the chancellor must apply the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997). The Martin v. Coop factors are here, in checklist form.
In the recent COA case of Bolivar v. Waltman, decided April 3, 2012, Judge Maxwell outlined the decision-making process:
Once the statutory criteria are established, the chancellor must apply the following Martin factors to determine appropriate visitation:
1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.
Townes v. Manyfield, 883 So. 2d 93, 95-96 (¶17) (Miss. 2004) (quoting Martin, 693 So. 2d at 916). The Mississippi Supreme Court has explained that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” Id. at 97 (¶29) (quoting T.T.W. v. C.C., 839 So. 2d 501, 505 (¶12) (Miss. 2003)). Because of the “integral” nature of these findings, our supreme court specifically instructs that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” Id. (emphasis added).
¶11. There is additional general guidance regarding the amount of visitation that should be awarded. “The visitation granted to a grandparent should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming[ly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. at 96 (¶21). And in cases where “a chancellor finds . . . a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Id. at 97 (¶29).
¶12. Further, we note that the grandparent-visitation statute and the Martin factors apply whether the grandparent is seeking visitation from a natural or adoptive parent. T.T.W., 839 So. 2d at 503-06 (¶¶1-2, 7, 10, 17) (finding grandparent-visitation statute and Martin factors applicable where maternal grandparents adopted children, and paternal grandmother sought visitation); see also Woodell v. Parker, 860 So. 2d 781, 785-86 (¶15), 789-90 (¶29) (Miss. 2003). Thus, we find it logical that both the grandparent-visitation statute and the Martin factors should similarly apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. See Townes, 883 So. 2d at 97 (¶29) (instructing that Martin factors must always be applied where grandparent visitation is at issue).
¶13. Because chancellors are required to make specific findings on the Martin factors in every case involving grandparent visitation, the supreme court has vacated grandparent visitation awards unsupported by such findings. Townes, 883 So. 2d at 97-98 (¶30); T.T.W., 839 So. 2d at 506 (¶17); Morgan v. West, 812 So. 2d 987, 992 (¶14), 997 (¶38) (Miss. 2002).
On remand, the chancellor should fully discuss his findings concerning the grandparent visitation statute and Martin factors. Failure to do so may amount to reversible error. See Townes, 883 So. 2d at 97-98 (¶¶28-30).
If your opinion or judgment does not include findings on the Martin factors, file a timely MRCP 59 motion asking the court to make such findings. That assumes, of course, that you put on enough evidence for the court to make such findings. As Judge Maxwell so clearly states, every grandparent vissitation case pivots on the Martin factors. They are vital to your case. Question the witnesses using them. Make your record, and make sure the chancellor addresses them in the ruling.
Only last week the MSSC unanimously upheld the constitutionality of Mississippi’s grandparent visitation statute and application of the Martin factors. We’ll talk about that later.
NEW RULES FOR MARRIAGE
April 24, 2012 § 4 Comments
Governor Bryant signed into law SB 2851, which makes some sweeping changes in how one applies for and obtains a marriage license in Mississippi. You can read the new law here for yourself.
The law, which takes effect July 1, 2012, changes much of MCA § 93-1-5. The new law clarifies the age limitations to provide that any male 17 years and older, and any female 15 years and older, may apply for a marriage license, provided that they have parental consent or have an order of a circuit, chancery or county court judge waiving the requirement.
Other changes: the three-day waiting period is eliminated, as is the requirement for a blood test for syphilis. You may not obtain a marriage license if it appears to the circuit clerk that you are intoxicated, or are suffering from mental illness or intellectual disability to the extent that you do not understand the nature and consequences of the application for a marriage license (there’s a lot I could say about this last provision, but I’ll let it go for now).
MCA § 93-1-7 is repealed. That is the section that provided the right of “any interested party” to contest issuance of a marriage license.
The biggest change here, of course, is elimination of the waiting period and blood test. Those two requirements in combination sent many a couple here in east Mississippi scurrying off to Alabama to tie the knot on impulse. Now they have no reason to run off somewhere else.
What impact will this have on the divorce rate? Too soon to say for sure. My own purely opinionated, unscientific guess is that most marriages that are entered into without much thought and reflection beforehand are marriages that don’t last too long. That being said, I don’t think the three-day waiting period accomplished much in the way of time for thought and reflection anyway. Besides, for couples who are “hotter than a pepper sprout,” like the song says, could hop over the line to Alabama and “get married in a fever” no matter what Mississippi law required. All in all, I think these changes eliminate some requirements that were outmoded in the 21st century and we can do without.
WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE? PART TWO
April 18, 2012 § 1 Comment
In an earlier post we talked about how critical it is under the grandparent visitation statutes to join the natural parents.
The COA in Bolivar v. Waltman, decided April 3, 2012, raised the issue on its own and tossed out the appeal, vacating the trial court judgment in the process.
The natural parents of two minor children were divorced in 2006. The mother got custody and the father had visitation. In 2008, the Waltmans, who were maternal grandparents, got guardianship of the children due to both parents’ substance abuse. Initially the Waltmans afforded Bolivar, the paternal grandmother, the same every-other-weekend visitation that her son had enjoyed. Over time, however, the Waltmans began to curtail the time they allowed Bolivar, and she filed suit against the Waltmans in Jones County Chancery Court asking to be restored the full extent of her son’s visitation. The natural parents were not made parties.
Following a hearing the trial court granted Bolivar the same visitation that her son had under the original divorce judgment, and the Waltmans appealed.
In his opinion for the court, Judge Maxwell said:
¶6. Although neither party raises the issue of jurisdiction, we must do so on our own initiative. E.g., Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995) (citing Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989); Cotton v. Veterans Cab Co., 344 So. 2d 730, 731 (Miss. 1977); Byrd v. Sinclair Oil & Refining Co., 240 So. 2d 623 (Miss. 1970)). Whether the chancery court had jurisdiction over a particular matter is a question of law, which the appellate court reviews de novo. In re Guardianship of Z.J., 804 So. 2d 1009, 1011 (¶9) (Miss. 2002) (citing Burch v. Land Partners, L.P., 784 So. 2d 925, 927 (¶7) (Miss. 2001)).
¶7. Mississippi Code Annotated section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation:
All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.
(Emphasis added). Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” Miss. Code Ann. § 93-15-107(1) (Rev. 2004). Likewise, we find these same parties are also indispensable in a custody determination. See Miss. Code Ann. § 93-27-205 (Rev. 2004) (requiring service of process on “any parent whose parental rights have not been previously terminated” in interstate custody disputes); see also generally Deborah H. Bell, Bell on Mississippi Family Law § 19.01[3] (2005); cf. Smith v. Watson, 425 So. 2d 1030 (Miss. 1983) (finding a third-party with custody of a child is a proper party to a custody dispute between parents but not a necessary party).
¶8. We find section 93-16-5’s mandate clear and unambiguous that the natural parents whose parental rights have not been terminated must be parties to a grandparent-visitation proceeding. And we conclude that the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. See Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (holding similar mandatory “shall” language in Mississippi Code Annotated section 91-7-25 (Rev. 2004), which establishes necessary parties to will contest, is a jurisdictional requirement); In re Estate of McClerkin, 651 So. 2d 1052, 1058 (Miss. 1995) (holding trial court lacked jurisdiction over will contest because “necessary and proper parties were not before the court.”) (citations omitted). As the supreme court similarly found in Garrett, we find that to give validity and credence to the trial court’s judgment without joinder of necessary parties would undermine the legislative mandate in section 93-16-5. Garrett, 621 So. 2d at 937.
The court vacated the judgment and remanded the case to the chancery court for further proceedings.
Earlier this year, an astute lawyer raised the non-joinder of a natural parent as a defense in a grandparent visitation case and stopped a trial in my court dead in its tracks. To be honest, had he not raised the issue, I would have gone ahead with the trial simply because I had no reason to read the statute. If I had granted visitation, as the learned chancellor did in Bolivar, I guess it would have been reversible on the same ground.
As a practitioner, don’t rely on your rusty memory of the ins and outs of the code sections you are relying upon when you bring an action. Read the code. And, for Pete’s sake, don’t just blindly do a cut and paste job on the last similar set of pleadings you filed back in 2008. Code sections get amended. Case law changes things. Read the code. Stay current. Produce a quality product for your client that can’t be overturned.
JUDICIAL PAY RAISE BILL SIGNED
April 16, 2012 § 2 Comments
HB 484 was signed into law Friday by Governor Bryant, putting into effect the first pay raise for Mississippi judges in nearly 10 years. The bill increases pay for appellate and trial judges in five increments over five years, beginning 2013. It is funded entirely by an increase in court filing fees that still leaves our state last in the southeast in the amount one has to pay to initiate a legal proceeding.
Many people helped get this done, and if I tried to name those who did, I would surely offend someone by omission, but this was a team effort by judges, legislators, leadership of the bar, lawyers, and laypeople who understand the importance of an independent, adequately-compensated judiciary.
The bill also establishes a group to study judicial compensation and make recommendations that would hopefully remove judges’ pay from the political-football status it has enjoyed hitherto. Maybe pay could be tied to a percentage of federal judges’ pay, or the southeastern average, or some other objective standard.
The entire budget for the judiciary in Mississippi is less than 1/2 of 1% of the state budget. Yes, less than 1/2 of 1%. The third, constitutionally co-equal branch of state government gets 1/2 of 1% of the entire state budget to fund its entire operation, which includes: salaries and state portion of benefits for 19 appellate judges and approximately 100 trial judges; salaries and state portion of benefits for staff attorneys and/or law clerks for judges who have them; an office expense allowance for each judge; the mini-bureaucracy in Jackson; in-state travel (some limited funds are available, rarely, to attend out-of-state conferences); and the judicial college in Oxford that provides much-needed training for judges. That’s a lot to squeeze into 1/2 of 1%.
A nearby legislator who voted against the bill was asked by an attorney why he voted against the bill. His response was, “They make enough.” I hope he gave the issue more thought than that. Even with the pay raise, Mississippi judges rank at or near the bottom of the southeastern average. As it stands now, it is a considerable sacrifice for most of us to take a job as a judge. What we give up financially is the possibility to earn more, the advantage of owning a business that can pay many expenses that judges have to shoulder personally, and the possibility of entering business ventures with others. But the limitations are not only financial. We have to submit to the code of judicial ethics, which limits us in many ways, and any judge who has done the job for even a short time can describe the feeling of isolation that comes with the wall of separation that is required to do it properly.
Despite the limitations, Mississippi has a remarkably talented, dedicated and competent judiciary. It struck me from the beginning as I saw judges at meetings and conferences how seriously they take their jobs. Judges work in our state, and they work hard, trying their best to follow the law and making difficult decisions.
Maybe our legislative leaders will find a new way in the future to give the judiciary adequate tools to do its job. Commerce depends on courts that are sound, consistent and clear in their rulings. Society depends on courts that are fair and equitable in resolving disputes among citizens, and sure and just in addressing criminal behavior. Government depends on the balance that the judicial branch provides.
It’s true that it all boils down to money, but we need to have the best government we can afford, not the cheapest we can get by with.
THE HIGH PRICE OF A LITIGATION MISFIRE
March 19, 2012 § Leave a comment
Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point 2. A case that blows up in one’s face. 3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.
We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.
In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:
“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.
¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”
You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.
It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:
The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.
Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.
The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.
Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”
MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.
The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”
A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.
In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.
MAKING CHILD SUPPORT RETROACTIVE
March 13, 2012 § Leave a comment
Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.
That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.
In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:
“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]
The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:
“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”
It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.
Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.
PARTITION: BY SALE OR IN KIND?
February 29, 2012 § 5 Comments
Partition is the legal mechanism in Mississippi for dividing joint owners’ interests in real property when they can not otherwise agree to do so. The partition statute is MCA § 11-21-1, et seq.
It seems from where I sit that almost all partition cases come before the court with near-unanimous agreement among the parties that, if the property must be divided, sale will be the most advantageous method.
Even in contested cases, the prevailing view appears to be that the property should be divided by sale. That is not the law in Mississippi, however. Partition in kind is the favored method of division.
In the case of Fuller v. Chimento, 824 So.2d 599, 601-2 (Miss. 2002), the Mississippi Supreme Court laid out the law on the subject:
A partition in kind is the preferred method of partition of property under Mississippi law. Overstreet v. Overstreet, 692 So.2d 88, 91 (Miss.1997); Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992); Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992); Monaghan v. Wagner, 487 So.2d 815, 820 (Miss.1986); Bailey v. Vaughn, 375 So.2d 1054, 1057 (Miss.1979); Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919, 926 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852, 854 (1961); Blake v. St. Catherine Gravel Co., 218 Miss. 713, 67 So.2d 712, 714 (1953); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 594 (1924); Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 156 (1911); Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539 (1908). See also 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 60:99, at 56 (2001).
The propriety of a partition sale or partition in kind is determined on a case-by-case basis. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 197 (1944). To justify a partition by sale, the party seeking the sale must bring his case squarely within Miss. Code Ann. § 11-21-11 (Supp.2001) which states in pertinent part that
If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.
The use of the conjunction “or” in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) “better promote the interest of all parties than a partition in kind” or (2) “if the court be satisfied that an equal division [of the land] cannot be made.” Id. See Blair, 601 So.2d at 850. See also Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908, 911 (1949); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898). “Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale.” Blair, 601 So.2d at 850. Furthermore, a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met. Shorter, 54 So. at 156.
The joint owner seeking a partition sale has the burden of proving that the land is not susceptible of partition in kind and that a sale is the only feasible method of division. Overstreet, 692 So.2d at 90-91; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 448 (1931).
It is permissible for the court to order partition by sale as to one parcel, and partition in kind as to another. The court’s action has to be supported by the requisite proof. I urge you to read the cases to get a feel for exactly what it is you need to prove.
When you have a partition suit and your client or the other party is objecting to a division in kind, you should expect your position to fail if you do not provide adequate evidence. If you want a sale, you must put on proof how sale will better promote the interests of the parties or that the property can not be equally divided in kind. The party wanting a sale has the burden of proof. If the party wanting a sale has met his burden of proof and you want division in kind, you must put on proof contradicting that of the party wanting a sale.
CONTRACTING AWAY CHILD SUPPORT ARREARAGES
February 6, 2012 § 1 Comment
If you’ve practiced family law to any appreciable degree, you will recognize this vignette:
Your client, Charlene, has had no success in getting Ron, her deadbeat ex, to pay any child support. The contempt actions you filed just don’t seem to accomplish much except continuance after continuance based on unfulfilled promises and begging, compounded with Charlene’s tender-hearted reluctance to see “the father of my children” jailed.
Just when you’re about at the end of your rope, a ray of hope breaks through the darkness. Charlene sweeps into your office, elated that she and Ron have worked out a deal. Charlene is willing to forget the $17,000 that Ron owes for back child support if Ron will buy Junior a used Toyota pickup (with 136,000 miles) and commence paying current support.
You hastily draft a joint petition and agreed judgment, get the parties to sign, and track down your friendly local chancellor. Sign on the dotted line, judge, you say, and make this problem go away.
What do you think the judge will do? Surely he will approve this, since the parties have agreed, and it will clear up an continuing, chronic course of contumely.
But the judge says no, citing Tanner v. Roland, 598 So.2d 783 (Miss. 1992), in which the parties struck a similar deal, which the Mississippi Supreme Court found to be invalid. Citing Calton v. Calton, 485 So.2d 309, 310-311 (Miss. 1986), the court pointed out that “The child’s right to his parent’s support can not be bargained or contracted away by his parents.” The Tanner court said at page 786, “We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they can not be modified or forgiven by the courts.”
Interestingly, Tanner also resulted in the supreme court finding that a five-year-old judgment of that same trial court eliminating an arrearage was void. You just can not do away with a vested arrearage.
Since the Tanner case, the Mississippi legislature created an exception for fathers whose parentage is disestablished. You can read about that statute here.
There is also the situation recognized in Varner v. Varner, in which the court may deem child support to have been “paid” to or for the benefit of the child when the child comes to live with the paying parent for a time by agreement of the parties. The theory is that it would create an unjust enrichment for the parent who did not have the child during that time. In such a case, the trial court still may not forgive the arrearage, but may only declare it to have been “paid” to for for the benefit of the child.
It is the Tanner-Calton line of cases that convinces me that it is improper for parents to contract away the right to future support at all in a property settlement agreement. I’m talking about language to the effect that neither party shall pay child support to the other, or that each party will support the child when the child is with him or her. Is that not bargaining or contracting away the child’s right to support as prescribed by Calton? I believe it is.
A contract to do away with child support is invalid and unenforceable. Even if you skate it past your chancellor, you will face reversal on appeal.
WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE?
January 23, 2012 § 3 Comments
Who gets to participate in a grandparent visitation case?
MCA § 93-16-5 states:
“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]
MCA § 93-15-107(1), dealing with termination of parental rights, states:
“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”
MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.
From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.
Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.
DOING MUNIMENT OF TITLE RIGHT
January 11, 2012 § 18 Comments
MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.
The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.
Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.
But you have to do it right. Here’s what the statute requires:
- The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
- The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
- The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
- Any beneficiary under a legal disability must sign the petition by legal guardian or parent.
- Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.
I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.
I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.
The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will.
Where to file? That should be governed by MCA § 91-7-3.
Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.
The Better Chancery Practice Blog 