EMANCIPATION TODAY

August 22, 2011 § 9 Comments

Emancipation occurs when a child has attained a status in which he or she is no longer entitled to parental support and control. The law of emancipation has undergone many changes in the last few decades.

MCA § 93-11-65 (8) now sets out the statutory bases for an adjudication of emancipation. There are two categories of emancipation. Category One requires a finding of emancipation upon the occurrence of any of the enumerated facts. Category Two cases allow the court in its discretion to find emancipation on proof of any of the enumerated facts.

Category One. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:

  1. Attains 21 years of age, or
  2. Marries, or
  3. Joins the military and serves full-time, or
  4. Is convicted of a felony and sentenced to two years or more.

Category Two. The court may determine that emancipation has occurred, unless otherwise provided in the underlying child support judgment, if the court finds that the child:

  1. Has attained the age of 18 years and has discontinued full-time enrollment in school, unless the child is disabled, or
  2. Voluntarily moved from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors before reaching the age of 21, or
  3. Cohabits with another person without approval of the parent obligated to pay child support.

The statute also provides that child support for an unemancipated child who is incarcerated is suspended during the period of incarceration.

In Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss. 1991), the court stated:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.  

In the case of Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss. 1998), the MSSC stated that the statute enlarges, but does not diminish, the Caldwell definition. In other words, the courts are not limited to the statutory language in determining emancipation. Putting the Caldwell definition together with the statute, it appears that the court has discretion to find that proof of emancipation facts under Category Two will not necessarily emancipate the child if the court determines that the child’s situation does not satisfy the Caldwell definition of emancipation.  On the other hand, the trial court has no discretion under the Category One facts. 

The Rennie court also announced the rule that the child gets “one bite of the apple,” and that a child once emancipated may not be unemancipated once the conditions that gave rise to the emancipation no longer exist. See also, Crow v. Crow, 662 So.2d 1226, 1228-30 (Miss. 1993). 

It is the child support payor’s duty to bring the issue of emancipation to the attention of the court. Strack v. Sticklin, 959 So.2d 1, 6 (Miss. App. 2006). When the payor fails or delays in seeking relief from the court, as opposed to self-help, the decision whether to make the emancipation retroactive is left to the judge’s discretion. Houck v. Houck, 812 So.2d 1139, 1143 (Miss. App. 2002). But note that emancipation of one or more children does not necessarily reduce child support where the child support obligation is “global” rather than a sum per child. Wiles v. Williams, 845 So.2d 709, 711-12 (Miss. App. 2003).    

The language of the statute “Unless otherwise provided in the underlying child support judgment” is recognition of case law that provides that the parties may extend emancipation or provide other emancipation triggers by agreement. A typical example is where they agree that “college and child support shall continue until the child attains a bachelor’s degree or age 23, whichever occurs first.” The statutory language raises the question whether the court, without an agreement of the parties, could extend the Category One emancipation triggers in an adjudication of child support. I think not, given the shall language of Category One. But what about where the parties agree, in a consent for example, that the court will adjudicate the extent and duration of child support? An intriguing question, and I am not aware of any case law one way or the other.

NO UCCJEA ALLEGATIONS = NO JURISDICTION? NO.

August 18, 2011 § 3 Comments

Lawyers are all over the ballpark when it comes to the UCCJEA allegations required by MCA § 93-27-209. Some still use the old and now-repealed UCCJA provisions that have apparently fossilized in their computers. Some omit them entirely. Some use a hybrid. And some even plead the proper provisions.

What happens when you fail to plead the UCCJEA provisions either completely or inadequately? Does the court have jurisdiction?

The MSSC answered the question in White v. White, 26 So.3d 342, 346 (Miss. 2010), where the court said:

First, the chancery court’s jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. See Miss. Const. art. VI, § 159. Second, the plain language of Section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding.

This issue is not jurisdictional, was within the sound discretion of the chancellor, and this argument is without merit.

The court rejected the appellant’s reliance on Marr v. Adair, 841 So.2d 1195, 1202 (Miss. App. 2003), because that case was decided under the repealed UCCJA.

Remember that under White, although the recitation of the jurisdictional language is not mandatory for the court to exercise jurisdiction, you still have to prove that the court has jurisdiction under the UCCJEA. When the MSSC said that “This issue is not jurisdictional,” it was referring to the matter at hand, which was the sufficiency of the pleadings, and not to the substance of jurisdiction in the case. It’s an important distinction. See, Miller v. Mills, decided by the COA May 3, 2011; you can read a post about the case here.

I have had lawyers move to dismiss at the outset of trial for incomplete or missing UCCJEA affidavit. I always overrule that motion and offer a continuance for the purpose of filing one, but I’ve never had anyone take me up on it.

A MINI-GLOSSARY OF PROBATE TERMS

July 27, 2011 § Leave a comment

Administration. Supervision of an intestate estate under the auspices of a court exercising jurisdiction.

Administrator. (f: Administratrix) One appointed by the court to take responsibility for an administration. Also used with certain modifying terms to designate a person appointed to replace an executor named in a will.

Administrator with the Will Annexed. (Administrator cum testamento annexo, or CTA) When the will names no executor, or where the nominated executor is unable or unwilling to serve, the court will appoint an administrator CTA (literally with the will in hand) to do the job.

Administrator de Bonis Non. (Administrator DBN) The original term was “Administrator de bonis non administratis,” which literally means administrator of the goods not [already] administered. The administrator DBN is appointed to administer the effects of a decedent that were not administered or omitted in a previous administration.

Administrator DBN CTA. An administrator appointed to replace an executor who had died or must otherwise be replaced before completing administration of the estate.

Administrator de Son Tort. One who, without any authority in a will or court order, assumes to act as executor or administrator of an estate, disposing of its goods and meddling in its affairs. Literally “Administrator in his own wrong.”

Beneficiary. One named in a will to receive a bequest, legacy or devise, or in a trust to receive the trust proceeds. Note that not all heirs are beneficiaries.

Bequest. Disposition of personal property by will.

Codicil. Written supplement to or addition to a will.

Decedent. The person whose death has occasioned the opening of an estate.

Devastavit. Literally “he or she has wasted.” An action against an executor or administrator charging him or her with mismanagement or neglect of duty that has caused loss and which obligates the fiduciary to the heirs, creditors or beneficiaries.

Devisavit vel non. The ancient name given to a proceeding in chancery court to determine whether or not the testator did devise, and whether the document presented was his will. Literally “Did he devise or not?”

Devise. Disposition of real property by will.

Devisee. Person to whom property is devised.

Executor. (f: Executrix) One appointed by the court to take responsibility for probate of a testate estate.

Fiduciary. Term embracing administrators, conservators, executors, guardians, trustees and others who have a special duty of good faith and responsibility to the court and interested parties in relation to the matters entrusted to him or her.

Heir. One who is designated under the laws of descent and distribution to receive the estate of a decedent not disposed of in a will. Although an heir may be a beneficiary, all beneficiaries are not necessarily heirs.

Holographic will. A will written entirely in the handwriting of the decedent.

Intestate. The state of not having written a will; also refers to the individual himself or herself.

Legacy. Same as bequest.

Legatee. One to whom a legacy or bequest is made.

Nuncupative will. An oral will knowingly made in extremis before the required number of witnesses.

Probate. The procedure to prove a will. Also, the collective term used for estates, administrations, guardianships, conservatorships and judicially-administered trusts, the common characteristic of which is appointment of a fiduciary to be responsible to the court and interested parties.

Probate in Common Form. Admission of a will to probate ex parte, without formalities.

Probate in Solemn Form. Admission of a will to probate after notice to all interested parties and a court hearing.

Residuary Estate. All that remains of an estate after the expenses of administration, debts, legacies and devises have been satisfied.

Settlor. One who creates a trust.

Testate. The state of having written a will; also refers to the individual himself or herself.

Testator. (f: Testatrix) The maker of a will, and one who dies leaving a will.

Trustor. Same as settlor.

Wrongful Death Beneficiaries. Statutory designation of persons who are entitled to a distribution of damages for another’s injury and death. Heirs and wrongful death beneficiaries are not necessarily the same persons. See MCA § 11-7-13.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the 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 … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

Q & A ON SOCIAL SECURITY’S INTERACTION WITH CHILD SUPPORT

June 28, 2011 § 2 Comments

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $250 a month from social security due to the father’s disability.  What is the effect of  social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation.  Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982). In this case, since the social security benefit is less than the support obligation, the father will receive credit for the $250 social security payment and will owe the $50 monthly difference.  

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from social security due to the father’s disability.  What is the effect of social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation, and any amount in excess is a gratuity to the child.  Mooneyham at 1074. 

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from supplemental security income (SSI) due to the child’s disability.  What is the effect of the SSI on the father’s obligation?

A:  None. Receipt by the child of SSI payments does not reduce the parental support obligation. Hammett v. Woods, 602 So.2d 825, 828 (Miss. 1992). The same result should apply to any form of benefit received by the child that is generated by the the child or someone other than the child-support-obligated parent.

An interesting twist on this principle appeared in the case of Bradley v. Holmes, 561 So.2d 1034 (Miss. 1990). The father began receiving social security and requested the mother to file for the child to receive benefits on his account. The mother instead filed for and received benefits for the child through the child’s step-father’s account because the benefits were higher. The father petitoned the court to eliminate his child support payments because the mother could have used his account to pay the support, but she elected to use another’s entitlement.  The supreme court agreed an held that the father’s obligation was extinguished because the step-father-derived benefits exceeded the amount of the father’s child support obligation.  

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued after his disability date, and the child receives a lump-sum payment from social security based on the father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

A:  Chapman v. Ward, 3 So.3d 790, 799 (Miss. App. 2009), and Keith v. Purvis, 982 So.2d 1033, 1038 (Miss. App. 2008), addressed this issue. Read in combination, they appear to hold that the father may have no credit, but the legislature might have altered that rule. Here is what the legislative drafting office provided us at the Judges’ Spring Conference about an amendment to MCA § 93-11-71, to take effect July 1, 2011: “Section 93-11-71 is further amended to provide that the parent who is in arrears on child support payments and who receives Social Security Disability insurance benefits for the support of that child or children will receive credit on the arrearage if it accrued after the date of the disability.”  Rooting that principle out of the chapter laws, or even the express language upon which the statement might be based, has been an insuperable challenge for me so far, so I will withhold a categorical statement as to what the new law might provide, so I will withhold jumping in until I receive my advance sheets. In the meantime, if you have this issue come up after July 1, I urge you to do your own research to protect your client’s interests.

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued before his disability date, and the child receives a lump-sum payment from social security based on father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

A:  It would appear both from the case law and the revised statute that the father has no protection or relief in this circumstance.

NEW GUIDELINES FOR GENETIC TESTING TO DISESTABLISH PARENTAGE

May 31, 2011 § 1 Comment

Ever since the supreme court’s ruling in Williams v. Williams, 843 So.2d 720 (Miss. 2003), that a man under a support order who is proven by DNA testing not to be the father of the child can not be required to continue to support the child, the procedure to be followed has been anything but clear.  Up to now, it has been up to each chancellor or county judge to find a way.

Effective July 1, 2011, the law on this point is clarified and specified.  The legislature has created a new MCA § 93-9-10, and amended 93-9-9, 93-9-28, 93-9-21, and 93-11-71, to spell out a uniform, orderly process.  Here are the highlights:

  • If parentage was established through a court order, and the father had been offered genetic testing and declined, he will not be granted the relief of disestablishment of parentage.
  • If parentage was established by the father signing the birth certificate, he will have one year within which to request genetic testing.  After that, he can not contest parentage except on a showing of fraud, duress or material mistake of fact.  Current law allows only 60 days to contest parentage.
  • If parentage was established because the parents were married at the time of the birth, the legal father will be allowed to petition for genetic testing so long as he did not continue to hold himself out as the father after learning that he was not the father, or if he prevented the actual biological father from asserting his parental rights.  This last provision appears to reflect and cover the situation addressed in the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which was discussed in a previous post.

This is intended only to be a general summary, so you should read the actual provisions when they appear in your legislative advance sheets.

RENEWING A JUDGMENT UPDATED

May 24, 2011 § 4 Comments

I posted here about the then-new procedure for renewing a judgment that went into effect in 2010.  That provision clarified some old statutory provisions that allowed for renewal of a judgment, but did not specify a procedure.

Effective July 1, 2011, MCA § 15-1-43 is amended to apply only to judgments or decrees that have not yet expired.  The attorney applying to renew the judgment must certify that the judgment has not expired when making the application to renew the existing judgment.

UNDERAGE DRINKING AND CUSTODY

May 18, 2011 § 2 Comments

We are all familiar with the scenario:  Modification case pending and one of the facts supporting the charge of material change/adverse effect/best interest is the fact that mom allowed junior and his friends to have beer at a senior graduation party she allowed to take place at her home.  Dad, who wants the modification, is incensed.  Mom minimizes it, insisting that no one got drunk, no one was allowed to operate a vehicle after drinking, and besides, these are all young men and women who are about to go off to college, and what’s the big deal? 

The Mississippi Legislature passed a bill, effective July 1, 2011, that amends MCA § 67-3-70, to prohibit adults from allowing a party to take place at a private residence or private premises if a minor at the party obtains any alcoholic beverage or beer and the adult knows or reasonably should have known that the minor has done so.  The offense is a misdemeanor punishable by a fine of $1,000 or not more than 90 days incarceration.

The public policy of the state, then, appears to weigh against mom’s position.

I don’t find a case where the issue was squarely before the appellate courts.  I have seen cases at the trial level where the issue is raised among others with respect to custody.  In the case of Self v. Lewis, decided by the COA on May 17, 2011, there is this language at ¶ 40:  “Providing alcohol to a minor is a crime, and the “[c]ommission of crimes by a custodial parent . . . is properly the concern of a chancellor.”  Sullivan v. Stringer, 736 So. 2d 514, 516 (¶14) (Miss. App. 1999).  In Self, the custodial father had a relationship with an 18-year-old woman to whom he served alcohol.  Sullivan involved the crime of cohabitation.

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