A NEW WAY TO RENEW A JUDGMENT

October 6, 2010 § Leave a comment

MCA § 15-1-43, has long provided that a judgment is enforceable for seven years from the date of rendition.  The only method to extend the judgment lien beyond seven years was to file another suit to renew the judgment within the seven-year period in the couty where the original judgment was entered or where venue would otherwise be proper.  Lloyd v. Bank of the South, 796 So.2d 985 (Miss. 2001).

The legislature amended MCA § 15-1-43, effective July 1, 2010, to create a more streamlined procedure that eliminates the need for a renewal lawsuit.  H.B. 277.  It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

To renew a judgment under the new procedure, one files a notice with the clerk of the court that rendered the judgment.  The notice should be in substantially the following form:

NOTICE OF RENEWAL OF JUDGMENT OR DECREE

(a)  Notice is given of renewal of judgment that was rendered and filed in this action as follows:

(i)  [Date that the original judgment was filed];

(ii)  [Case number of such judgment];

(iii)  [Judgment was taken against];

(iv)  [Judgment was taken in favor of];

(v)  [Current holder of such judgment];

(vi)  [Current amount owing of such judgment].

(b)  If applicable, that a Notice of Renewal of Judgment or Decree has been previously filed with the clerk of the court on [date].

The clerk enrolls the renewal in the same manner as an original judgment, and the renewal is effective as of the date of filing with the clerk.  The right to file suit to extend a judgment continues unimpaired.

At the time of filing notice, the judgment creditor or attorney must file an affidavit setting out the name and last known post office address of the judgment debtor and judgment creditor.  The clerk shall “promptly” mail a copy of the notice to the judgment debtor at the address provided, and shall make a notation of mailing on the docket.  The notice shall include the name and address of the judgment creditor and attorney, if any.  The judgment creditor may mail a copy and proof of mailing with the clerk.  Lack of mailing by the clerk does not affect the validity of the renewal if the judgment creditor files its own proof of mailing.

The renewed judgment is enforceable for seven years from the date of filing, and may be renewed in successive terms in like manner.

FULL FAITH AND CREDIT AND SAME-GENDER COUPLE ADOPTIONS

October 1, 2010 § 1 Comment

In order to adopt a child under Mississippi law, the adoptive parent(s) must be either an unmarried individual or a married couple with both partners joining.  MCA § 93-17-3 specifically states that “Adoption by couples of the same gender is prohibited.” 

What about the situation where a same-gender couple adopt a Mississippi child in a state where it is legal for them to do so, and they ask Mississippi to alter the birth certificate?  Is Mississippi required to recognize the legality of that adoption and enforce their rights here? 

In the case of Adar v. Smith, 597 F.2d 697 (5th Cir. 2010), a New York same-gender couple in a New York proceeding adopted a Louisiana child.  They applied to Louisiana to change the child’s birth certificate to reflect the adoption.  Louisiana objected and took the position that the New York judgment was not entitled to full faith and credit because it was repugnant to Louisiana public policy embodied in its laws that prohibited adoption by unmarried couples. 

The U.S. Court of Appeals for the Fifth Circuit held that the full faith and credit clause of the U.S. Constitution requires states to recognize the valid judgments of other states, even where the judgment of the other state violates public policy in the state where it is sought to be enforced; there is no public policy exception.

Some may ask how this impacts Mississippi law that our state will not recognize same-gender marriages performed in other states.  The distinction for now, until the courts address the question, is that marriage is a bureaucratic, administrative act, as opposed to a judgment entitled to full faith and credit.

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 20 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed. 
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

VOUCHERS YOU CAN VOUCH FOR

September 23, 2010 § 6 Comments

by Jane Stroble Miller, Senior Staff Attorney for the Twelfth Chancery Court District

Shortly after graduating from law school I was confronted with a baffling legal question.  An older and more experienced attorney was attempting to do something that Mississippi statutes and case law clearly stated he could not do.  In my naiveté I assumed he knew of a statute or case about which I was ignorant that allowed him to act as he did.  After several hours of exhaustive research I called a former professor and mentor, the Honorable William Champion.  On hearing my dilemma, he chuckled and informed me that I had just encountered an attorney who had been practicing law for so long that he had lost touch with what the law was. 

Recently I again encountered this phenomenon in my duty as staff attorney in monitoring probate matters.  One of my tasks is to try to explain to attorneys why the chancellor feels that their accountings do not meet the requirements of both the statutes and the Uniform Chancery Court Rules (UCCR).  In a meeting with an older attorney, I pointed out that he had failed to attach vouchers to his accounting.  He insisted that he could not provide the necessary documentation “because the banks no longer returned the original canceled checks,” and remained firmly stuck to that position.  I realized that I would have to do some research to arrive at a definitive answer.

Section 91-7-277, MCA, requires that the annual account show ” … disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher …”  Sections 91-7-279 and 93-13-71, MCA, prescribe the form for vouchers and provide that the account shall be rejected by the clerk unless the vouchers are in the proper form.  The only exception to the voucher requirement is when the guardian is an approved financial institution.

Over time, attorneys began using original canceled checks as “legal vouchers,” and the courts recognized them as such.  Although neither the statutes nor case law identify canceled checks as “legal vouchers,” there is authority in UCCR.  In fact, UCCR 6.04 does specifically refer to “a receipt or cancelled bank check …” as a voucher.

The problem with canceled checks as vouchers, however, is that if you stop at the check, you have omitted the most important, and meaningful, part of Rule 6.04.  The sentence of the Rule dealing with vouchers, in its entirety is as follows:  “Every such voucher shall consist of a receipt or cancelled bank check showing to whom and for what purpose the money was paid.”  [Emphasis added]

In other words, if the canceled check fulfills the function of showing “to whom and for what purpose the money was paid,” then it is a proper voucher within the meaning of the Rule.  If the canceled check does not do that job, it is not an acceptable legal voucher.  Put even plainer:  if the canceled check would not otherwise be acceptable as a receipt, it simply is not a legal voucher.

UCCR Rule 6.06 (Lost Vouchers) reinforces my conclusions.  It states that if the original voucher is lost or destroyed, a duplicate or ” … receipt from the person or corporation to whom the money was paid or the property was delivered … ” may be accepted by the court.  Again, the function of a voucher is to document actual payment, the recipient and the purpose.

I even looked at Black’s Law Dictionary, which defines voucher as ” … an account, receipt, or acquittance, that shows on its face the fact, authority, and purpose of the disbursement.” 

Given no hard and fast definition of a “legal voucher,” I formulated the following requirements for a voucher to be sufficient to comply with our laws:

  • A voucher must first and foremost be legal evidence that the money was disbursed for the purpose for which it is authorised or allowed.
  • It must be in writing or printed and show the payee, amount and date, and services or goods for which the disbursement was made. 
  • A check made out to “cash” , even an original canceled check is not a “legal voucher.” 

Canceled checks, whether copies or original, really only prove that a payee was paid a certain amount of money.   In some circumstances, canceled checks may not be adequate proof.  For instance, when a court has authorized the purchase of a computer for a minor ward, a canceled check to Best Buy or Sam’s Club does not prove the money was disbursed for a computer.  The check could have just as likely been used to purchase a big screen television or a new set of tires for the guardian’s car.  The same holds true for many canceled checks for clothing or personal items.  Since vouchers are supposed to be “evidence,” the better practice is for an attorney to have printed receipts that match the date and amount of a canceled check.  The guardian should provide the attorney with register tapes, tags or price stickers from the items purchased to prove that the disbursements were actually made for the ward and not for another party or purpose.

The best yardstick that both a judge and attorney could employ in determining the adequacy of a voucher would be to ask whether or not the proof would be of such a nature and sufficiency to be admissible as evidence at a trial and contains all the information necessary to convince the average person that the disbursement was made for what the guardian claimed it was made.

It took me a little time, digging and thought to arrive at my conclusions, but I had Professor Champion’s wisdom as a starting point and a reminder that sometimes we can practice law so long that we lose touch with what the law is.

ANATOMY OF A WILL CONTEST II: PROVING UNDUE INFLUENCE

September 21, 2010 § 5 Comments

We already took a look at testamentary capacity here.  This post deals with the other pole of the will contest:  undue influence.

A presumption of undue influence arises where a confidential relationship is proven to exist.  Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007).  A confidential relationship does not have to be a legal one, and the relationship may be moral, domestic, or personal, and ” … the confidential relationship arises when a dominant over-mastering influence controls over a dependent person or trust, justifiably reposed.”  Murray v. Laird, 446 So.2d 575 (Miss. 1984).

A confidential relationship exists where one person is in a position to exercise dominant influence over the other because of the latter’s dependency on the former due to weakness of mind or body, or due to trust; the law considers such a relationship to be fiduciary in character.  Madden v. Rhodes, 626 So.2d 608, 617 (Miss. 1993).  The party seeking to prove existence of a confidential relationship must do so by clear and convincing evidence.  Whitworth v. Kines, Id. at 230.

In making its determination whether a confidential relationship exists, the trial court must consider the seven factors set out by the Mississippi Supreme Court in Dabney v. Hataway, 740 So.2d 915, 919 (Miss. 1999). Those factors are:

  1. Whether one person has to be taken care of by others.
  2. Whether one person maintains a close relationship with another.
  3. Whether one person is provided transportation and medical care by another.
  4. Whether one person maintains joint accounts with another.
  5. Whether one is physically or mentally weak.
  6. Whether one is of advanced age or poor health.
  7. Whether there exists a power of attorney between the one and the other.

After considering the seven factors, the court returns to the core question, which is whether the proof establishes that the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and whether such has been proven by clear and convincing evidence. The question at this point is not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.

Once the presumption arises, it must be rebutted by clear and convincing evidence. Estate of Pigg v. McClendon, 877 So.2d 406, 411 (Miss. App. 2003).

The proponent then has the burden of going forward with clear and convincing evidence in a three-prong test set out in Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss. 1987). The three-prong Mullins test requires the proponent to prove:

  1. good faith on his part;
  2. the grantor’s full knowledge and deliberation of his actions and their consequences; and
  3. that the grantor or testator exhibited independent consent and action.

A will or conveyance is said to be the product of undue influence when an adviser has been so persistent and pressing that the testator’s free will and agency is suppressed.  See, Longtin v. Wilcher, 352 So.2d 808, 811 (Miss. 1977).

In order to determine whether the proponent acted in good faith as provided in the first prong of the Mullins test, the trial court must consider the five factors listed in Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007).  Those factors are:

  1. The identity of the person seeking preparation of the instrument.
  2. The place of execution of the instrument and in whose presence.
  3. What consideration and fee were paid, if any.
  4. By whom paid.
  5. The secrecy or openness given the execution of the instrument.

The second prong of the Mullins test is the grantor’s full knowledge and deliberation of his actions and their consequences. In order to adjudicate this prong, the court must take into consideration the factors set out in Estate of Holmes, supra at 685-686.  Those factors and the court’s findings are as follows:

  1. His awareness of his total assets and their general value.
  2. An understanding by him of those persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would affect that prior will or natural distribution.
  3. Whether non-relative beneficiaries would be excluded or included.
  4. Knowledge of who controls his finances and business, and by what method, and if controlled by the other, how dependent is the grantor/testator on him and how susceptible to his influence.

The third and last prong of the Mullins test is whether the decedent exhibited independent consent and action.  In Dean v. Kavanaugh, 920 So.2d 608, 622 (Miss. App. 1993), the Mississippi Court of Appeals stated that the best way to show independent consent and action is to establish that the testator/grantor had the benefit of advice of a competent person disconnected from the grantee and devoted solely to the testator/grantor’s interests.

ANATOMY OF A WILL CONTEST: PROVING LACK OF TESTAMENTARY CAPACITY

September 14, 2010 § 6 Comments

Before the contestants in a will contest may proceed, the proponents of the will must first establish their position that the will is valid.

In Estate of Holmes, 961 So.2d 674, 679 (Miss. 2007), the Mississippi Supreme Court stated:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. [Citation omitted] The proponents make a prima facie case solely on this proof. Id. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of the evidence that the testator had capacity. Id.

The proponents typically make a prima facie case by admitting into evidence the will, the witness affidavits, the order granting letters testamentary, and the letters testamentary.

In order to determine testamentary capacity, the trial court must consider three factors:

  1. Whether the testator had the ability at the time of making his will to understand the nature and effect of his acts.
  2. Whether the testator had the ability at the time of making his will to understand the natural objects or persons to receive his bounty and their relation to him; and
  3. Whether the testator was capable of determining at the time of making the will what disposition he desired to make of his property.  Estate of Holmes, Id.

“In considering all the evidence, some testimony will receive greater weight. The testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution … The date of execution is the most important date, given that we recognize that a testator may not possess capacity one day and within several days have the capacity to execute a valid will.”  Rocco v. Sims, 918 So.2d 864, 871-872 (Miss. App. 2005).

The same capacity that is required to make a valid deed is required the for making a valid will.  Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992).   Since the party seeking to set aside a deed must prove by clear and convincing evidence that the grantor lacked mental capacity at the time of execution, and not simply that the grantor suffered general weakness.  In re Conservatorship of Cook, 937 So.2d 467, 470 (Miss. App. 2006), it would follow that the same standard of proof would apply to a case in which the party seeks to set aside a will on the same basis. 

 

IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS

September 13, 2010 § 2 Comments

We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife.  Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway.  Consider: 

In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings.  In that case, the husband and wife were divorced based on a consent.  Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered.  The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.

The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby.  The reversal apparently did not go down well with the Court of Appeals, however.  In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case.  Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”     

Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings.  But why invite scrutiny?  It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed.  Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.

The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun.  Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed.  The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery.  Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun.  The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the consent, ” may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.”  It was not error in the circumstances for the court to refuse to grant leave to withdraw.

Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it?  In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint.  The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce.  Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss.  In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences.  Wife appealed, and the Court of Appeals reversed.

If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level.  If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.

A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.

Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk.  Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP.  In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion.  In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did.  Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground.  The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission.  Thus, husband’s pleading had no effect on the ultimate outcome.  

A GRAVE DISCOURTESY

September 3, 2010 § 2 Comments

You get 10 points if you can answer this question:

In our law and rules there are transgressions that can be treated as contempt, and there are some that can be sanctioned by removal or disqualification of the attorney.

What action or or omission of an attorney ” … will be considered a grave discourtesy?”

WHO RETAINS THE ORIGINAL OF A PROBATED WILL?

August 26, 2010 § 13 Comments

Twice this summer, the deputy Chancery Clerks in Lauderdale County have been confronted by lawyers wanting to probate original wills and demanding to retain the original.  One was from another district with large cities to our west, and the other was, I am sad to report, from closer to home.  The clerks, I am glad to report, stood their ground and demanded the original for filing.   Both lawyers condescendingly made it clear that our clerks are backward ignoramuses, and one went so far as to say that ours is the only district that makes the ridiculous demand for the original will.  Which is where I was called in — apparently it is the Chancellor’s role to determine as between eminent lawyers and lowly clerks just who is the backward ignoramus. 

Now, in all my years in the law, I had never heard of a lawyer in Mississippi retaining an original will after its admission to probate.  But then again, we are more or less country peasants in this part of the state, and some things do pass us by.  As is my anachronistic, unsophisticated practice, I sought for the answer in that arcane repository of gnostic mysteries of the law that remain so seemingly inaccessible to most practicing attorneys:  The Mississippi Code.   

It only took me a few minutes to leaf directly to Section 91-7-31, MCA, which states:

All original wills, after probate thereof, shall be recorded and remain in the office of the clerk of the court where they were proved, except during the time thay may be removed to any other court under process, from which they shall be duly returned to the proper office.  Authenticated copies of such wills may be recorded in any county in this state.

So there you have it.  The statute unambiguously requires that the original must be surrendered to the clerk of the court where the will is probated, and the clerk is responsible to record it and keep it.   

Even though the truth revealed in the statute would seem to be clear, I realize that I do learn something new each day, and I posited to myself that there might be some angle to this issue that was known only to these superior attorneys that neither I, nor the state legislature, nor nearly 200 years of Mississippi jurisprudence had taken into account.  Accordingly, I raised the question at the Chancery Judges’ study meeting last weekend whether any judges were aware of any districts where the statute was not being followed, or of any exception to the rule, and the unanimous response was no. 

In our own, primitive way here in the hinterland, we try to follow the law, and when we do so, we will look first to the Mississippi Code and the Chancery Court Rules and not to the lawyer’s interpretation.  We know that is a backwards and so 20th-century approach, but that is the old-fashioned way we still do it.  We apologize if that offends your more cosmopolitan sensibilities that may not allow you time between workouts at the gym to look up the law.  If our humble practice is too “slow lane” for you, perhaps you should pass that estate off to a local lawyer who is more accustomed to our rustic ways.

Practice Tip:  (1)  Read and know the law.  (2)  Apply Practice Tip (1) before acting like a jerk toward the Chancery Clerks.  Oh, and while you’re at it, refresh yourself on the Mississippi Lawyer’s Creed, especially that part that reads: “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.”

” ‘TIL DEATH DO US PART” — OR MAYBE NOT

August 24, 2010 § Leave a comment

Charles Allen and Janet Allen were divorced in 2002, but they continued a relationship and even resumed wearing their wedding rings.  They opened a joint checking account and made plans to move in together.  They spent every weekend together, and Charles even had a private line installed in Janet’s residence so that they could talk with one another whenever they wished.  Janet said “It was like we were never divorced.”  Eventually, they saw where the relationship was headed and decided to set aside the divorce so they could get back together.   

On May 17, 2006, they filed a joint petition in the Chancery Court of Pearl River County to revoke the divorce as provided in § 93-5-31, MCA.  So far, so good.  Only problem is that Charles died June 16, 2006, before the court could hear any testimony on the petition.

The specific code section invoked by the joint petition reads as follows:

The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation. 

The Chancellor quashed the petition nearly a year later on condition that he would allow Janet to file a timely request for reconsideration if she could show sufficient facts of reconciliation.

Janet did file for reconsideration, and the Chancellor found after hearing that she had presented proof sufficient to satisfy the criteria for revocation of the divorce.  He entered a judgment revoking the divorce, and the Administrator of Charles’s estate appealed.   

In Carlisle v. Allen, 2009 WL 1758864 (Miss.Ct.App. June 23, 2009), a case of first impression, the Court of Appeals reversed, holding that, although Janet had produced sufficient evidence to support a finding of reconciliation, the trial court has no authority to reinstate the marriage because of Charles’s death.  The court reasoned that since death of a party to a divorce ends the status of marriage and would even have the effect of nullifying a divorce action, the purpose of the statute, which the court found was “to reunite two formerly married persons as a married couple,” would be thwarted because there “is no status of marriage upon which to operate.”

Janet filed a petition for certiorari, which was granted.

On cert, the Supreme Court reversed the Court of Appeals and reinstated the Chancellor’s decision.  In Carlisle, Adm’r of the Estate of Allen v. Allen, No. 2007-CT-02047-SCT, the court held that Janet had met all of the criteria of the statute, had presented satisfactory evidence in support of it, and that it was not error for the Chancellor to grant the revocation in such a situation, regardless of Charles’s intervening death.  The opinion pointed out that there is nothing in the statute that required both parties to be alive when the revocation is ordered, and that it was error for the Court of Appeals to analogize the action to a divorce action, where the applicable law is not necessarily the same.

There are some procedural disagreements between the majority and the dissenters that hinge on the timeliness of the motion to reconsider and the trial court’s jurisdiction as a result.  That is an issue for another post. 

As a practical matter, this case is mostly of academic interest since petitions for revocation are pretty rare.  I only presented two in 33 years of practice and have had none come before me on the bench.  Interestingly, I did have a case where my client died before the divorce judgment could be signed by the Chancellor, but after the Chancellor had rendered his opinion from the bench.  In that case, White v. Smith, 645 So,2d 875 (Miss. 1994), the Supreme Court upheld Chancellor Shannon Clark’s entry of a Judgment of Divorce nunc pro tunc after the death.

This Allen case raises what I consider to be a couple of valid questions:  Why do we need this statute?  Would we not be better off if it were repealed?

The first question is based on the simple fact that the parties are free to remarry at any time with little bureaucracy, which is in my opinion the preferable manner to effect their reunion.  Why would they prefer to hire an attorney, draft pleadings, set a court date, appear and testify, and await the judge’s ruling?  I am speculating here, but I believe it is reasonable to assume that this statute is an adjunct to the Chancellor’s power to forbid the remarriage of the parties due to adultery (still in the code at § 93-5-25, MCA), and perhaps this statute was a way for parties to get around that injunction.  In any event, I am not aware of any case in my career in practice or on the bench where a Chancellor has entered such an injunction, and certainly not in the 21st century.  What other reason is there for this law to continue in effect?     

My second question stems from the fact that since this statute was enacted, the landmark Ferguson case and its offspring have taken root in our jurisprudence, giving rise to many questions about the accumulation of marital assets between the time that the divorce judgment is entered and the date it is revoked.  Consider, for example, that the husband got title to the former marital residence in the divorce and has made all mortgage payments in the interim.  Is the residence restored to its status as marital property (notwithstanding title)?  And what are the parties’ respective equitable interests in it?  Remarriage would set a clear demarcation as opposed to revocation, which raises more questions than it answers.

Something to think about.

« Older Entries

Newer Entries »

Where Am I?

You are currently browsing the Statutes category at The Better Chancery Practice Blog.