UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009.  It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts.  The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven.    You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”  

There are three ways to impose measures under the Act spelled out in Section 7:

  1. A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction.  Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.    
  2. A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures.  A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.    
  3. A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA.  Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination.  The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why.  Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA. 

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission.  The factors include whether there has been:

  1. A previous abduction or attempted abduction;
  2. A threat to abduct;
  3. Recent activity indicating a planned abduction;
  4. Domestic violence, stalking or child abuse or neglect;
  5. Refusal to follow a child-custody determination;
  6. Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
  7. Strong familial, financial, emotional or cultural ties to another state or country;
  8. Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
  9. An ongoing immigration proceedings that may result in expulsion;
  10. An application for U.S. citizenship denied; 
  11. Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
  12. Use of multiple names;
  13. Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

  • Imposition of travel restrictions;
  • Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
  • Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
  • An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
  • Surrender of passports and prohibition against applying for new or replacement passports or visas;
  • Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view:  On first blush, it would appear that this would be a rarely-invoked law.  After all, how many times have genuine abduction situations arisen in our courts?  Well, in 2010, I have already had two cases that raised issues under this law.  One involved a citizen of  middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again.  The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples.  With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then. 

Practice Tip:  Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations.  It can be an important tool in your custody tool box.

FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute.  It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party.  The court shall make written findings to document how and why the presumption was or was not triggered.”   

A preponderance of the evidence is required to overcome the presumption.  In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

  1. Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
  2. Whether the perpetrator has successfully completed a “batterer’s treatment program;”
  3. Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
  4. Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
  5. Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
  6. Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence.  The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.”  Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement?  I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption.  Has he had a conviction for domestic violence?  Has he been put under a County Court TRO?  Has he been convicted of assault on a family member?  Has there been Youth Court or DHS involvement?  Has he gotten carried away in his discipline of the children or in an argument with his wife? 

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

JUDGE ROBERTS’ PRIMER ON ADVERSE POSSESSION

November 17, 2010 § 3 Comments

In the case of Dean vs. Slade, et al., rendered November 9, 2010, Judge Larry Roberts of the Court of Appeals laid out a template of authority you should keep on hand for your next adverse possession case.  Although the decision does not touch on all of the adverse possession factors, it touches on some important authority that you can use to your advantage.  I simply stripped the material below right out of Judge Roberts’ opinion, making a couple of minor editorial changes.

THE ADVERSE POSSESSION FACTORS

MCA § 15-1-13(1) (Rev. 2003) provides the following: Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.] Thus, the party claiming adverse possession must prove by clear and convincing evidence that his/her possession was “(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.” Stringer v. Robinson, 760 So. 2d 6, 9 (Miss. Ct. App. 1999) (citing Rice v. Pritchard, 611 So. 2d 869, 871 (Miss. 1992)). “The ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership.” Id. (citing Johnson v. Black, 469 So. 2d 88, 90-91 (Miss. 1985)).

THE EVIDENTIARY STANDARD

Clear and convincing evidence has been defined as follows: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So. 2d 969, 975 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So. 2d 1369, 1375 (Miss. 1990)).

CONFLICTING EVIDENCE

Absent a finding of an abuse of discretion or manifest error, a chancellor is the sole judge of the credibility of witnesses and the weight to give to the evidence. Webb v. Drewrey, 4 So. 3d 1078, 1081 (Miss. Ct. App. 2009).

ACTUAL OR HOSTILE

“Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’” Warehousing Mgmt., LLC v. Haywood Props., LP, 978 So. 2d 684, 688 (Miss. Ct. App. 2008) (quoting Wicker v. Harvey, 937 So. 2d 983, 993-94 (Miss. Ct. App. 2006)). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So. 2d 702, 706-07 (Miss. Ct. App. 2001) (citing Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992)). “Adverse use is defined as such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right.” Peagler v. Measells, 743 So. 2d 389, 391 (Miss. Ct. App. 1999) (quoting Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 334 (1927)).

OPEN, NOTORIOUS AND VISIBLE

The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible. Wicker, 937 So. 2d at 994 (citing Craft v. Thompson, 405 So. 2d 128, 130 (Miss. 1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So. 2d 1057, 1059 (Miss. Ct. App. 2003) (citing People’s Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304, 1305 (Miss. 1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Wicker, 937 So. 2d at 994(citing Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992)).

SOME THINGS YOU MAY NOT KNOW ABOUT GUARDIANSHIPS

November 10, 2010 § 2 Comments

Here are some things you may not already know about guardianships.  Some of them have teeth that can draw blood if they catch you unawares …

  • MCA § 93-13-38, provides that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
  • MCA § 93-13-33, requires that the guardian return an inventory within three months of the appointment, and states:  “Any guardian who shall fail to return inventories may be removed and his bond be put in suit, unless he can show cause for the default.”
  • When closing out a guardianship, the requirements of MCA § 93-13-77, must be satisfied.  That section requires that a final accounting filed, and that the ward be summoned and given notice to be and appear before the court on a day not less than one month after the date that the summons is served or after completion of publication, to show cause why the accounting should not be approved.  The accounting can not be approved earlier than one month after completion of process.  All the requirements to close a guardianship are here.
  • When a guardian has more than one ward, each ward’s business must be accounted for separately.  MCA § 93-13-69.
  • A child 14 or older has a statutory right to choose his or her guardian.  If the ward is over 14, you should have the child join in the petition.
  • Guardianship of a minor ceases by operation of law at age 21, and, in the discretion of the Chancellor, at age 18.  The guardianship may also be terminated by order of the court at any time that the estate has a value less than $2,000 and no further funds or property are anticipated to come into the guardian’s hands.  MCA § 93-13-75.
  • Any claim for a guardian’s fee must include the information required in Uniform Chancery Court Rule 6.11.
  • A “solicitor’s fee” (MCA § 93-13-79) may be allowed for the attorney, and the claim for it must be supported by an itemized statement of services rendered in the same form as that required for the guardian’s fee, plus the information required in Rule 6.12 of the Uniform Chancery Court Rules.    

EXEMPT PROPERTY AND ESTATES

October 28, 2010 § 14 Comments

You’re handling an estate of a decedent whose spouse predeceased him.  The decedent was a man of modest means with a two-bedroom home in town, some furniture and appliances, an older car, some savings and $6,000 in a 401(k) account.  There’s not enough cash to  pay all the creditors’ claims.  The surviving children and grandchildren want you to close the estate as soon as possible.  Do you advise them to sell the furniture at an estate sale to muster up enough cash to satisfy the creditors?  Or should you get court approval to sell the house, pay the debts, and distribute what’s left?

Not so fast.  All that property may not even belong in the estate in the first place.  It may not be subject to the creditors’ claims at all.

MCA § 91-1-19 provides in part:

 The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”

What this language means is that the property that is exempted by Mississippi law from sale under execution or attachment descends automatically, not through any estate, as stated in the statute.  You would be shortchanging the statutory survivors considerably by not pursuing the exemptions. 

It’s important to know what are the exemptions.  MCA § 85-3-1 sets out the personal property and financial assets that are exempt:

There shall be exempt from seizure under execution or attachment:

(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:

(i) Household goods, wearing apparel, books, animals or crops;

(ii) Motor vehicles;

(iii) Implements, professional books or tools of the trade;

(iv) Cash on hand;

(v) Professionally prescribed health aids;

(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.

Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.

(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.

(ii) Income from disability insurance.

(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:

(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;

(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and

(iii) An individual retirement account.

(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.

(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.

(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.

(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).

(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.

(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.

(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.

(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.

(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.

MCA § 85-3-21 establishes the homestead exemption. 

There are other exemptions that are set out in the cross-references to the code sections cited.

MCA § 91-7-117 requires the appraisers to set apart the exempt property.

As attorney for the estate, you have a duty to determine what assets need to be declared exempt and not included in it.  In moderate estates it could mean the difference between survivors getting nothing and the survivors getting something.

Now re-read the first paragraph above.  Do you see it differently?

DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS

October 27, 2010 § 1 Comment

Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator.  The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney.  After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis.  The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.

 Frank retained another attorney and appealed the Chancellor’s decision.

The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010. 

There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.

There is no question that Frank Lewis was present at the hearing with his retained attorney.  Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court.  In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver.  The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court.  The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.

The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with.  If there are two relatives within the third degree, you must join them.  If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.

CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?

October 20, 2010 § 2 Comments

It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor.  Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986). 

The rule is not ironclad, however.  The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:

… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.”  [Emphasis added]

Caveat:  The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.

ALSO:  § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.

CONTESTING PROBATED CLAIMS IN AN ESTATE

October 19, 2010 § 4 Comments

Section 91-7-165, MCA, allows the executor, administrator, legatee, heir or any creditor to contest a claim presented against the estate.  The statute requires notice to the claimant and a hearing.

This court requires notice on the claimant via a Rule 81 summons, returnable to a specific date and time.  Any other interested party who may have an interest contrary to the contestant should also be summoned, in this judge’s opinion.

At hearing, the burden of establishing a claim is on the claimant by clear and convincing evidence, or as one case characterized it, “by clear and reasonably positive evidence,” even though the claim has been admitted to probate by the clerk (in other words, the admission to probate of a claim does not have the same effect as admission of a will to probate). 

The decree of the court is limited to allowing or disallowing the claim, and the court can not enter a money judgment or judgment for other relief.

Appeal time runs from the date of entry of the decree allowing or disallowing the claim, and not from the date the estate is closed.

ADAR UPDATE

October 18, 2010 § Leave a comment

The Adar decision issued by a three-judge panel of the Fifth Circuit was the subject of a post I made October 1, 2010.  You can read my post here.  The ruling, issued in February and amended in March, was that a same-gender adoption judgment in New York was entitled to full faith and credit in Louisiana. 

On the very day I made my post, the Fifth Circuit en banc vacated the three-judge panel ruling on a petition for re-hearing:

 On October 1, 2010, the Court announced that a majority of the Circuit Judges in regular active service voted in favor of granting En Banc rehearing. By operation of Fifth Circuit Rule 41.3, that decision automatically vacated the Panel decision of February 18, 2010.

That leaves us for now where the case started, which is with a pending appeal to the Fifth Circuit, which now will take the matter up in the full panel.

Stay tuned.

Thanks to attorney Bill Jacob for bringing this to my attention.

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