Statutes | The Better Chancery Practice Blog

Involuntary Partition by Spouses for Homestead Property

January 7, 2014 § 2 Comments

Mississippi law provides, essentially, two avenues by which parties who share joint interests in real property may effect a partition of their interests: (1) the property interests may be divided by decree of a chancery court per MCA 11-21-3; or (2) the parties may reach a signed agreement, per MCA 11-21-1.

In 2009, the Mississippi legislature amended MCA 11-21-1, the voluntary agreement provision, to add the following language:

(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.

I think most practitioners read that language to mean that, unless the spouses agreed, there could be no partition of homestead property by partition action between them. Whether that interpretation is correct was the subject of a recent MSSC decision.

Elise Noone filed a complaint for divorce charging her husband, Frank, with habitual cruel and inhuman treatment. The chancellor denied the divorce in 2011. The parties were joint tenants with right of survivorship in some 67 acres of land in Copiah County, upon which they claimed homstead. Since the divorce was denied, the property remained in joint ownership.

Elise then filed an action for declaratory judgment to determine whether the chancellor had the power to partition the property, or, at least, to the extent that the value of the property exceeded the $75,000 maximum amount of the homestead exemption, and, if so, asking the court to make a partition of the property. She then filed a motion for summary judgment arguing that the language “exempted from execution” in MCA 11-21-1(2) limited application of the statute to the value of the property exempt from execution only. Frank countered that the language is not limiting, but intends that any homsetead property can be subject to partition only by agreement, and not otherwise.

The chancellor agreed with Frank, and Elise appealed.

The MSSC handed down its decision on December 12, 2013, in Noone v. Noone, Justice Coleman writing, for a unanimous court, explained:

¶7. Elise maintains that, by using the phrase “homestead property exempted from execution,” the Legislature meant specifically to incorporate Section 85-3-21, the homestead exemption statute. Section 85-3-21 allows one to hold up to $75,000 worth of his or her homestead property exempt from execution by creditors. Miss. Code Ann. § 85-3-21 (Rev. 2011). Creditors can access the value of homestead exempted property that exceeds $75,000. Id. Elise’s primary argument is that Section 11-21-1(2) applies only to the extent that the property is actually exempt from execution. In other words, she contends that the law applies the same way to spouses seeking to partition land by decree as to creditors – the law creates a limit on homestead property exempt from execution, and that limit is applicable in all situations where homestead property is invoked. If she were correct, because the Noones’ property is valued at more than $600,000, Elise would still be able to partition the large majority of the property.

¶8. The issue, in the narrowest sense, is the interpretation of the phrase “homestead property exempted from execution.” Miss. Code Ann. § 11-21-1(2) (Supp. 2013). When the meaning of a statute is plain and unambiguous, “the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction.” City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992) (citations omitted). The potential meanings of “homestead property exempted from execution” are two: (1) the phrase could mean that the entire homestead property is under the ambit of Section 11-21-1, and therefore partition must be by written agreement of the owners; or (2) the phrase could mean that Section 11-21-1 applies only to the $75,000 that is exempt from execution by creditors under Section 85-3-21.

¶9. If the interpretation of that phrase were a true matter of first impression for the Court, then the latter reading might be plausible. However, in similar contexts, the Court has restricted the meaning of “homestead property exempted from execution” to the former. See Hendry v. Hendry, 300 So. 2d 147, 148 (Miss. 1974) (“Homestead value is relevant only in considering the claims of creditors in relation to the homestead upon which exemption is claimed.”); accord Stockett v. Stockett, 337 So. 2d 1237, 1240 (Miss. 1976). Hendry and Stockett have foreclosed any ambiguity. Therefore, in the instant case, the Court is tasked with nothing more than applying the logic underlying Hendry and Stockett.

¶10. In Hendry v. Hendry, a husband sold homestead property without obtaining his wife’s approval. Hendry, 300 So. 2d at 148. Pursuant to Mississippi Code Section 89-1-29 (Rev. 2011), a conveyance so made cannot be upheld. Section 89-1-29 provides, generally, that a conveyance of a “homestead exempted from execution” is not valid or binding unless signed by the owner’s spouse. Id. The Hendry Court held the value limitation on homestead property relevant only to creditors. Hendry, 300 So. 2d at 149. Therefore, the law voided the entire conveyance – not just the portion subject to exemption from creditors. Id.

¶11. The Stockett Court discussed the issue even more explicitly. Stockett, 337 So. 2d at 1239-41. In Stockett, the decedent left all of his property equally to his wife and son. Id. at 1238. The son tried to partition the homestead property of the widow (formerly owned by the decedent) but was denied because of Mississippi Code Section 91-1-23, which limits a devisee’s right to partition a decedent’s “exempt property” occupied by the widow of the deceased. Id. The decedent’s son argued that Section 91-1-23 protected the property only to the extent the value equaled the amount exempt from execution. Stockett, 337 So. 2d at 1239. The Court disagreed, holding that the limit found in Section 85-3-21 protects creditors, while Section 91-1-23 protects widows. Id. at 1240-41; see Miss. Code Ann. §91-1-23 (Rev. 2013). The Stockett Court wrote:

We have not varied in this interpretation of these statutes since 1905 when we said, in Moody v. Moody, 86 Miss. 323, 38 So. 322[, 323 (1905)]: “The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors-to prevent unreasonable amounts from being held exempt from execution to the prejudice of those to whom just debts might be due. But the question of value has no place in a consideration of the rights of the surviving widow to the use and occupancy of the homestead. . . .”

Stockett, 337 So. 2d at 1240.

¶12. Both Section 91-1-23 and Section 11-21-1 invoke the exemption from creditors found in Section 85-3-21. However, the reasoning employed by the Stockett Court applies to the case sub judice. Just as Section 91-1-23 protects widows from involuntary partition, Section 11-21-1 protects spouses from involuntary partition. Neither statute protects creditors. The phrase “homestead property exempt from execution” serves as a descriptive phrase identifying the property that one (or, in the instant case, a married couple) inhabits. As shown above, we repeatedly have held that the Legislature’s decision to use the phrase “homestead property exempt from execution” in other statutes identifies the specific type of property that the Legislature wants to protect. The phrase is not, as Elise argues, intended to bring the specific limitations on creditors’ rights to other, unrelated statutes.

That’s a pretty definitive decision. The statute is to be read as protective of spouses, and any interpretation that conflicts with that intent will be rejected.

A Due Process Wrinkle for Child Support

January 2, 2014 § Leave a comment

Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.

If you will look at MCA 93-11-65(5) and (7), you may find some help.

MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].

Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.

Why go to that trouble?

Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”

So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.

The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.

To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations

Temporary Setbacks, Part I

December 30, 2013 § 4 Comments

A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:

I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.

Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.

The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”

As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.

I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:

“No.”
“If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
“Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
“I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
“I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
“[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
“I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
“No. Never. No justiciable issue.”

That’s about 20% of the chancellors.

If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.

Applying the Post-9/11 GI Bill

October 28, 2013 § Leave a comment

As war drags on in the Far East, there is a growing number of veterans who have earned entitlement to educational benefits under the Post-9/11 Veterans Educational Assistance Act of 2008, known as the “Post-9/11 GI Bill,” codified at 38 USC § 3301, et seq.

The law grants active-duty veterans payment of college tuition, fees, books, and a monthly housing allowance. Those benefits may be transferred to a family member. The law includes the language, however, that:

” … Entitlements transferred … may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 USC § 3319(f)(3).

George Neville and his former wife, Tina Blitz, were confronted with how to divide Post-9/11 benefits in connection with the college education of their daughter, Joyce. George was eligible for Post-9/11benefits, and he decided to transfer them to Joyce.

George wanted Joyce to attend SMU so as to maximize her Post-9/11 benefits. Tina wanted Joyce to attend a state-supported school in Mississippi so as to qualify for in-state tuition. Joyce chose SMU, and she and George agreed that she would bank the $1,200 monthly housing stipend to use after her entitlement to Post-9/11 benefits expired, presumably when she reached age 21. For her share, Joyce began paying the equivalent of the expenses at a state-supported school.

George filed a petition to modify the parties’ divorce judgment. His position at trial was that he wanted Tina to pay all expenses not covered by the GI Bill, which he estimated to be around $19,000 a semester.

The chancellor modified the judgment to provide that George was entitled to full credit for tuition, fees, and books, but that the $1,200 housing benefit would be taken off the top, and not credited to him. George appealed, complaining that the chancellor’s ruling was a division of benefits contrary to the statute.

In a case of first impression, the MSSC in Neville v. Blitz, rendered September 26, 2013, reversed the trial court’s ruling. The opinion by Justice Coleman, explained:

¶9. We previously have considered distribution of military disability benefits and military retirement pay in domestic relations cases. See Mallard v. Burkart, 95 So. 3d 1264, 1272 (¶ 21) (Miss. 2012); Rennie v. Rennie, 718 So. 2d 1091, 1095 (¶ 13) (Miss. 1998); Hemsley v. Hemsley, 639 So. 2d 909, 913 (Miss. 1994); Newman v. Newman, 558 So. 2d 821, 823 (Miss. 1990). But those cases dealt with the application of other federal laws pertaining to military benefits, such as the Uniformed Services Former Spouses’ Protection Act, not the Post-9/11 GI Bill. The instant issue is one of first impression for the Court, and we have not found any cases from any jurisdiction directly addressing the specific issue at hand.

¶10. In the instant case, the chancellor held that Joyce’s college expenses should be reduced by her scholarships and the $1,200 monthly housing stipend; then Tina and George were to split the remaining amount equally, with George taking full credit for all Post-9/11 GI Bill benefits except the housing stipend. George asserts that the chancellor’s treatment of the monthly housing stipend violated Section 3319, which provides that benefits transferred to a spouse or child “may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S.C. § 3319(f)(3) (2011). Tina maintains that the prohibition on treating transferred benefits as marital property is inapplicable, because the chancellor did not classify the stipend as marital property; thus, she maintains that the chancellor’s decision did not constitute a division of the benefits. Tina also argues that, because George transferred the benefits to Joyce, the benefits belong to Joyce much like her scholarships; therefore, Tina asserts that taking the benefits off the top before dividing the remainder between the parents was appropriate.

¶11. George earned the benefits at issue here long after the parties divorced, and neither party claims that the benefits are marital property. We agree that George’s Post-9/11 GI Bill benefits were not marital property because they were not earned during the marriage; thus, they were not subject to division. See Wheat v. Wheat, 37 So. 3d 632, 637 (¶¶ 14-15) (Miss. 2010); Hemsley, 639 So. 2d at 915 (Miss. 1994). While the chancellor did not label the benefits as marital property, his instruction to take the benefits off the top of Joyce’s expenses gave Tina a credit that she otherwise would not have had and resulted in George not getting full credit for all of the Post-9/11 GI Bill benefits. We find that the chancellor’s decision effectively acted as a “division” of the benefits. Although the proceeding was not an original divorce proceeding, it was a “civil proceeding” pertaining to modification of a divorce decree. Therefore, we conclude that the chancellor’s allocation of the housing stipend amounted to a division of the benefits in a civil proceeding, which is prohibited by Section 3319(f)(3).

¶12. Tina’s argument that the GI Bill benefits belonged to Joyce lacks merit. When benefits are transferred, the service member has the option to revoke the transfer at anytime. 38 U.S.C. § 3319(f)(2) (2011). Thus, the service member remains in control of the transferred benefits, and they still belong to him. The chancellor held that George was entitled to credit for the rest of the benefits – the payments for tuition, fees, and books – but the $1,200 monthly stipend was taken off the top of the expenses and not credited to George. All of the benefits should be treated equally. Because the GI Bill benefits still belong to George, he should be credited with all of them, and none of the benefits should be divided between George and Tina.

The case was remanded to the chancery court.

The chancellor in this case did exactly what I think most chancellors would have done; that is, to credit George with the actual benefit of his entitlement that was being applied for the child during her minority, and splitting the remaining unpaid expenses between the two parents.

The wild card in this case, however, was the GI Bill, which includes express language against dividing the benefits. In this scenario, the MSSC found that the chancellor had, indeed, divided the benefits by force of his ruling, against the language of the statute.

This would seem to be a more frequently encountered fact situation as greater numbers of active-duty veterans pass through our courts in domestic relations actions. The Post-9/11 GI Bill is a law with which you need to become familiar.

A Law Library in Your Pocket

October 10, 2013 § 1 Comment

MC Law scores again in the “Useful Things for the Practice of Law Department.” This time, it’s an almost-app you can add to your home screen on your mobile phone, tablet, or even your laptop.

I say “almost-app” because it’s really a link to a web site you access via your mobile, but the text is maximized for mobile use.

The link is http://law.mc.edu/mlr/. Enter it in your browser and follow the instructions to add an app-like link to your home screen.

Here’s what you will find in this mini-library:

MRCP
MRE
MRAP
Rules of Professional Conduct
MCA 1972
MSSC Opinions
MCA Opinions
All Court Rules
Constitutions of 1890, 1868, 1832, and 1817.
MC Law Library Online Catalog
Judicial Data Project
Legislative History Project

It also includes the federal rules and even has access to PACER.

MC Law continues to lead the way in innovations that are not only useful and helpful for pratitioners, but also in a readily-accessible form. Almost everyone carries a cell phone around, even to court. When the judge says, “If you would read Rule 81, you would know what I am talking about …” you can whip out your cell phone, tap a couple of screens, and scroll to the very subsection in question.

And when you’re sitting in the back of the courtroom for a couple of hours waiting to present your case, it’s comforting to know that you can spend that time reading (or re-reading) the Constitution of 1817.

We’ve talked here before about MC’s ingenious Judicial Data Project. It’s a treasure trove of appellate information, including a database of briefs, videos of oral arguments, decisions, and more.

The Legislative History Project is a video archive of legislative debate over individual bills and select resolutions as they actually took place on the floor of the Mississippi House of Representatives and Mississippi Senate. Searchable by bill number, bill author, and bill description. The site says, “Provided with each video clip is a summary of legislative action taken that day. The project also links to the Mississippi Legislature Web page where more information may be obtained regarding the individual bills and their principal author.”

A History of Family Violence

August 26, 2013 § 2 Comments

A serious act or history of family violence has an impact on the adjudication of custody, and even visitation. It’s a subject I’ve posted about here, here and here.

The matter is addressed in MCA 93-5-24(9)(a)(i), which establishes a rebuttable presumption regarding family violence: ” … 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 statute does not explicitly define the term “family violence,” but it does refer to violence against ” … the party making the allegation or a family household member of either party.”

The statute goes on to say that the court may find a history if it finds either (a) one incident of family violence that resulted in serious bodily injury, or (b) a pattern of family violence. The finding is by a preponderance of the evidence.

In the COA case of Rolison v. Rolison, decided December 11, 2012, Alisa Rolison argued that the chancellor had refused and failed to apply the presumption against her ex-husband Gary in a case where there was proof in the record of what she considered to have been family violence. Judge Fair, for the majority, stated the court’s ruling:

¶6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss. Code Ann. § 93-5-24.

¶7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶11-12). The supreme court upheld awarding custody to the maternal grandparents explaining [Fn 1]:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue. J.P., 987 So. 2d at 981-82 (¶16). [Fn1]

[Fn1] This Court [the COA] rendered a similar decision in Lawrence v. Lawrence, 956 So. 2d 251, 260-61 (¶¶33-35) (Miss. Ct. App. 2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss. Code Ann. § 93-5-24.

¶9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

In Rolison, the facts as to Gary’s violence simply did not rise to the level that would put the presumption into effect. If there were any serious episode, it was by one of the children against Alisa, requiring her to have surgery.

It’s hard to read the cases and come away with a clear picture of exactly what it is that constitues a “history” of “family violence.” Those are terms of art, but the definitions seem to be a moving target, based on the facts in the case. Sort of like US Supreme Court Justice Potter Stewart’s “I know it when I see it” definition of obscenity.

The main point to bear in mind is that, as you develop your child custody case, determine whether there are facts that might bring the statute into play. If so, peruse the statute and see whether and how it can help you prevail. Or, if you are on the downhill side of the case, look at the 6 factors the court has to consider to overcome the presumption and see how you can turn them to your advantage.

Venue in Divorce and the Accompanying Child Custody Action

August 15, 2013 § Leave a comment

Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.

Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.

Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.

The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?

Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).

Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.

The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).

Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.

Mitchell sought an interlocutory appeal, which the MSSC granted.

In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:

Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30).
“We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).

That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:

I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.

As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.

I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there.

Rights of a Widow, Part II: Renunciation of the Will

August 13, 2013 § Leave a comment

In Part I, we discussed the right of the widow (which also embraces widowers) to one-year’s support from the estate when the spouse has died. In this post we deal with the right of the widow to renounce a will when it does not make adequate provision for her. The right is codified in MCA 91-5-25.

As we saw in Part I, Joe Howard Estes and Sarah (Young) Estes had been married only nine months when Joe Howard died. Sarah had moved out of Joe Howard’s home and back to her own home shortly after he had suffered from some serious health issues, including amputation of his leg and arterial surgery. She filed for divorce, which was pending at the time of Joe Howard’s death.

Joe Howard’s will, which was admitted to probate, made no provision for Sarah at all, so she filed notice of renunciation with the court, which eventually awarded her a child’s share (1/5) of the estate, less $12,000 that she had been granted as a widow’s allowance.

The co-executors appealed, and the COA reversed in Estate of Estes: Estes v. Estes, decided December 11, 2012. Judge Maxwell, writing for the majority, summed it up:

¶17. Mississippi Code Annotated section 91-5-25 (Rev. 2004) allows a widow whose deceased husband “does not make satisfactory provision” for her in his will to renounce the unsatisfactory provision and elect to take the a child’s share of the estate. See also Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923) (holding second husband not provided for in his deceased wife’s will was entitled to inherit a child’s share of his wife’s real property). Under section 91-5-27, when the husband’s will makes no provision at all for his widow, no renunciation is required—it will be assumed that the widow has elected to take her share of the estate. Miss. Code Ann. § 91-5-27. Thus, the chancellor was correct in one sense that the right to inherit under 91-5-27 is “automatic” because, in contrast to the right under section 91-5-25, no act of renunciation or election of a child’s share is required.

¶18. But the chancellor was incorrect that this automatic right to inherit, as if the deceased husband died without a will, arises in every situation without exception. The record shows the chancellor believed his hands were tied regarding Young’s renunciation of Estes’s will and right to inherit one-fifth of the estate. Although acknowledging the evidence supporting Young’s abandonment of the marriage, the chancellor nonetheless awarded her a child’s portion of the estate because he was not aware “of any case law at all that would reflect . . . that [Young] somehow would not be entitled to a child’s portion[.]”

¶19. But there is Mississippi precedent of this nature. Our supreme court has previously acknowledged the operation of estoppel when a spouse trying to take a child’s share of the estate has deserted or abandoned the marriage. In re Marshall’s Will, 243 Miss. at 478, 138 So. 2d at 484 [(1962)]; Walker v. Matthews, 191 Miss. 489, 511-12, 3 So. 2d 820, 826 (1941); Williams v. Johnston, 148 Miss. 634, 636-37, 114 So. 733, 733-34 (1927). In Tillman v. Williams, 403 So. 2d 880, 881 (Miss. 1981), the supreme court clarified what was required for estoppel: “Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel.”

¶20. While he acknowledged evidence showing Young’s desertion or abandonment of the marriage, the chancellor did not make a finding of clear desertion or abandonment. This was because he mistakenly believed such an estoppel-type finding would have no legal effect on Young’s right to inherit. Since the award of a child’s share of the estate was based on an erroneous application of the law, we reverse the award to Young of one-fifth of the estate and remand for a determination of whether Young’s action met the clear-abandonment standard of Tillman, thus estopping her from inheriting from the Estes’s estate. [Footnotes omitted]

So it is estoppel that will preclude a spouse who has abandoned or deserted the marriage from taking a child’s share. For the estoppel to come into effect the chancellor has to make a finding that “there is a clear desertion and abandonment.”

An interesting sidelight in this appeal is that the appellants did not specifically raise Sarah’s renunciation as an issue in the appeal. How, then, could the COA address it? The COA opinion said this about it at Footnote 5 to ¶16:

While the co-executors did not raise as a separate issue Young’s renunciation of the will, they raised the issue of Young’s abandonment of the marriage and its effect upon Young’s rights, as well as challenged the amount of the award of one-fifth of the estate. Thus, we find the question of the will’s renunciation and Young’s right to inherit a child’s share is before us. But even were it not, reversal based on the chancellor’s misapplication of the law would be warranted under plain-error review. “Plain-error review is properly utilized for ‘correcting obvious instances of injustice or misapplied law.’” Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981)); see also M.R.A.P. 28(a)(3) (permitting this court to “notice a plain error not identified or distinctly specified” in the appellants’ statement of issues).

A post that talks about some of the quirks of renunciation can be found at the link.

Rights of a Widow, Part I: Widow’s Allowance

August 12, 2013 § 1 Comment

Joe Howard Estes accumulated a considerable estate during his lifetime. On August 3, 2006, he married Sarah (Young) Estes. Not long after the marriage, Joe Howard suffered health complications that resulted in amputation of a leg and surgery to alleviate an arterial blockage. Later in that same year, Sarah moved out of Joe Howard’s home and back into her own home. She filed for divorce a few months after moving out.

Joe Howard died on May 17, 2007. The divorce action was still pending at the time of his death, and he and Sarah had not resumed cohabitation.

Joe Howard had a will, which his children probated, that made no provision for Sarah.

Sarah filed a petition for one year’s support (widow’s allowance) and exclusive possession of homestead property, renounced the will, and asked for appointment of appraisers.

There ensued several years of litigation between Sarah and Joe Howard’s four surviving children. In the course of the litigation, the chancellor granted Sarah a widow’s allowance of $12,000, and awarded her one-fifth of the estate — a child’s share — of some $80,000, from which he subtracted her $12,000 allowance.

The co-executors appealed.

The COA reversed the trial court in the case of Estate of Estes: Estes v. Estes, decided December 11, 2012. In this post, we’ll look at the court’s ruling on the issue of widow’s allowance.

Judge Maxwell’s opinion explains it clearly:

¶10. A widow or widower who was dependent on the surviving spouse is statutorily entitled to a year’s allowance for his or her maintenance and that of the children, if any. Section 91-7-135 imposes a duty on “the appraisers [of an estate] to set apart out of the effects of the decedent, for the spouse and children who were being supported by the decedent, or for the spouse if there be no such children, or for such children if there be no spouse, one (1) year’s provision[.]” Miss. Code Ann. § 91-7-135. This provision may take the form of money “necessary for the comfortable support of the spouse and children, or spouse or children, as the case may be, for one (1) year.” Id.

¶11. Under section 91-7-141, the chancery court has discretion to “apportion the one year’s allowance, or any part of it, according to the situation, rights, and interests of any of the children or the widow, and may direct the payment of any portion of the allowance which may be found necessary or proper to any of them.” Miss. Code. Ann. § 91-7-141; see also Bryan v. Quinn, 233 Miss. 366, 368, 102 So. 2d 124, 125 (1958) (citations omitted) (“The rule is well settled in this State that the widow’s allowance for one year’s support is within the sound discretion of the chancellor.”).

¶12. While the chancellor relied on this statutory authority to award Young a $12,000 widow’s allowance, Young was not “being supported by the decedent” and, thus, not in need of provision from Estes’s estate to make her comfortable. See Miss. Code Ann. § 91-7-135. So we find the award an abuse of discretion.

¶13. Our supreme court has clarified that the statute “relative to the widow’s allowance provides that such allowance shall be set aside to the widow and children who were supported by the decedent.” In re Marshall’s Will, 243 Miss. 472, 479, 138 So. 2d 482, 484 (1962) (emphasis added). The statute places on the widow “the burden of establishing her claim to a year’s support, [by] showing either that she was being supported by [her husband] at the time of his death or that she was away from him without fault on her part.” Id. Here, Young clearly failed to meet this burden.

¶14. It is undisputed that Young left Estes’s home by her own volition after his leg was amputated. And she was living in her own home at the time Estes died. In Byars [v. Gholson, 147 Miss. 460, 465, 112 So. 578, 578-79 (Miss. 1927)] , the Mississippi Supreme Court held that a widow who had been living apart from her husband, without his fault, and who was not supported by him, was not entitled to one year’s support from his estate. Byars, 147 Miss. at 465, 112 So. at 578. We find the same is true here.

¶15. Because we find the widow’s allowance was not supported by substantial evidence of Young’s financial dependence on Estes at the time he died, the chancellor abused his discretion in awarding Young one-year’s support. We reverse the award of a $12,000 widow’s allowance and render judgment against Young’s claim to one-year’s support. [Footnotes omitted]

I think that there is a widespread belief that the widow’s allowance (that term embraces widower’s allowance also) is automatic, and that the only issue is how much. That’s not so, as Estes tells us.

In Part II, we’ll address how the COA dealt with Sarah’s rights due to renunciation of the will.

Parties in Adoptions

August 6, 2013 § Leave a comment

It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.

The statute requires that the following persons be joined by process or by consent to the adoption:

the parent or parents, even though one or both are under twenty-one; or
if both parents are dead, then any two adult kin of the child within the third degree; or
if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or

The statute goes on to say that “In addition,” the following shall be made parties:

person(s) having physical custody of the child, except foster parents via DHS.
any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;

A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”

Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”

If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.

If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.

In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.

I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.

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