Groundless
August 9, 2016 § 6 Comments
Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.
After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.
In her case in chief, Lonnie presented testimony that Les:
- Was uncommunicative, controlling, and belittling.
- Was unwilling to spend time with her or to schedule family vacations.
- Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
- Refused to give her compliments or to acknowledge her contributions to their life.
- Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
- Refused to give her money to buy groceries because he might not like the food she bought.
- Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”
Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.
For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.
The chancellor ruled that Lonnie had failed to prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.
In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.
I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.
What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).
Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”
I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.
People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.
I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.
When Excusable Neglect Isn’t
August 8, 2016 § Leave a comment
We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.
In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.
Later, in early 2016, we noted here that the MSSC had granted cert.
Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:
¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.
The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”
The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.
The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.
One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:
¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.
The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.
“Quote Unquote”
August 5, 2016 § Leave a comment
“Proud, brave, honorable by its lights, courteous, personally generous, loyal, swift to act, often too swift, but signally effective, sometimes terrible, in its action — such was the South at its best. And such at its best it remains today, despite the great falling away in some of its virtues. Violence, intolerance, aversion and suspicion toward new ideas, an incapacity for analysis, an inclination to act from feeling rather than from thought, an exaggerated individualism and too narrow concept of social responsibility, attachment to fictions and false values, above all too great attachment to racial values and a tendency to justify cruelty and injustice in the name of those values, sentimentality and a lack of realism — these have been its characteristic vices in the past. And, despite changes for the better, they remain its characteristic vices today.” – W. J. Cash
“That sinuous southern life, that oblique and slow and complicated old beauty, that warm thick air and blood warm sea, that place of mists and languor and fragrant richness…” – Anne Rivers Siddons
“I’m very Southern in the way I walk in the world. I love to laugh. I love to eat. I love to hug people. But if somebody makes me mad, my neck may roll. I can be aggressive with a Southern twang.” – Katori Hall
ABA Blawg 100
August 3, 2016 § Leave a comment
The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).
If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.
[I am republishing this once each week until August 7]
New Discovered Evidence that Isn’t
August 2, 2016 § Leave a comment
In the divorce action between Paul and Laura Lacoste, the chancellor awarded Laura sole physical and legal custody of their two children, equitably divided the marital estate, and awarded Laura rehabilitative alimony.
After the final judgment was entered, Paul filed a R59 motion claiming that there was newly discovered evidence that: (1) Laura had moved to the Mississippi Gulf Coast, taking the children with her; (2) Laura had cashed out a retirement account, sticking him with a more than $13,000 tax bill; (3) the accounting bill for the 2013 taxes had increased; and (4) his income had decreased. The chancellor ruled that the issues raised in Paul’s motion were more properly modification issues, and denied him rehearing. Paul appealed on this and several other points.
In Lacoste v. Lacoste, decided July 19, 2016, the COA affirmed. Judge Barnes wrote for the majority:
¶55. A motion for a new trial under Mississippi Rule of Civil Procedure 59 based on newly discovered evidence “is an extraordinary motion, and the requirements of the rule must be strictly met.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013). Newly discovered evidence is evidence that existed at the time of trial, but was discovered after trial; it does not include “evidence that did not exist at the time of trial.” In re V.M.S., 938 So. 2d 829, 834 (¶10) (Miss. 2006) (citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990) (stating that authorities interpreting Federal Rule of Civil Procedure 60(b)(3) “seem unanimous in holding that” newly discovered evidence “must have been in existence at the time of trial or at the time of the judgment which is allegedly in need of correcting”)).
¶56. None of Paul’s claims are newly discovered evidence. Laura’s alleged move occurred posttrial. Thus, Laura’s alleged move cannot qualify as newly discovered evidence. The additional tax burden resulting from Laura cashing out a retirement account is likewise not newly discovered evidence. Paul testified at trial that he was aware that Laura cashed out the account in 2013. He testified that he did not know if Laura had withheld taxes when she cashed out the account, but that he realized if she did not, it would “greatly” impact the parties’ tax liability if they filed jointly. Laura admitted at trial to withdrawing the money from her retirement account, and she testified there would be penalties and additional taxes as a result of her doing so. Paul had a CPA whom he typically contacted on a monthly basis who could have investigated the tax consequences of the retirement account’s liquidation. The fact that he failed to request the CPA to do so until after trial does not make this evidence newly discovered. Finally, Paul’s argument that his income had decreased in the first three months of 2014 is not newly discovered evidence, as this did not occur until after trial.
¶57. As to Paul’s arguments regarding Laura’s alleged move, the chancellor recognized his concern regarding this in her opinion, stating, “Paul was concerned about Laura moving from the Madison area to be near her family and friends in the Atlanta or Ocean Springs area.” So the chancellor was aware Laura’s moving was a possibility and was able to consider it when rendering her opinion. Regardless, none of Paul’s assertions are newly discovered evidence, and the chancellor correctly excluded them from consideration posttrial. This issue is without merit.
From this case you can take away at least the following:
- Evidence that is newly discovered must be evidence that was in existence at the time of the trial, but was unknown to or concealed from the movant so that it prevented from having been presented.
- Newly discovered evidence does not include matters which were known to the movant but, for whatever reason, were not presented at trial to the court, or which by due diligence could have been known and presented.
- Facts that arise after entry of the judgment are matters that are properly presented as a contempt or modification.
When is a GAL Required? (Part II)
August 1, 2016 § Leave a comment
Last November, we discussed the COA’s decision in Carter v. Carter, a child-custody modification case in which the chancellor had removed custody from Jennifer Carter because of her squalid living conditions and inattention to the child’s dental care.
Jennifer appealed, claiming that it was error for the chancellor to adjudicate the case without appointing a GAL. The COA affirmed, pointing out that neither Jennifer nor her ex had asked the court to appoint one.
Jennifer filed for cert, which the MSSC granted. Oral argument has been completed, and we are awaiting the court’s decision. Jane Tucker posted on the case with links to the cert petition, supplemental briefs, and video of the oral argument. You can access her post at this link.
Here’s hoping that the high court takes this opportunity to clarify just what allegations or proof are necessary to trigger appointment of a GAl, and how grievous the situation needs to be. As for allegations, Jennifer argued in her cert petition that the COA’s decision imposes too harsh a standard on litigants; in other words, she is arguing that once the proof is in the record the chancellor has a duty to appoint. The question remains, though, how serious the child’s circumstances must be to require a GAL. In his opinion for the COA, Judge Fair wrote that the supreme court has typically drawn the line at fact situations that would trigger youth court jurisdiction, and he found that the facts in Carter did not rise to that level. maybe the court can add some clarity.
ABA Blawg 100
July 28, 2016 § Leave a comment
The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).
If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.
[I am republishing this once each week until August 7]
An Order is Not a Judgment …
July 25, 2016 § 1 Comment
… and vice versa.
Chancellors are presented with all manner of documents to sign as acts of the court. They are styled variously such as Order, Judgment, Decree, and others. But there are really only two forms of court actions provided for in the MRCP: judgments, and orders.
A judgment is different from an order.
R54(a) states that a judgment is “a final decree and any order from which an appeal lies.”
R6(b)(1) states that an order is made upon an application to the court by motion.
So a judgment is appropriate when it concludes or finally adjudicates the case.
An order is appropriate while the case is pending and the court is addressing matters brought before it by motion.
Correct: Final Judgment of Divorce; Judgment Closing Estate; Judgment Quieting and Confirming Title; Temporary Order; Order Granting Authority to Pay Expenses of the Ward; Order Compelling Answers to Interrogatories, Order Granting Divorce, etc.
Incorrect: Temporary Judgment; Order Approving Final Accounting and Closing Conservatorship; Judgment on Motion to Compel Answers to Discovery, etc.
The term “Decree” is the ancient, traditional term for a final judgment in chancery, especially in a divorce. I think it is still an appropriate term to use for a chancery court judgment, particularly since R81 specifies that the MRCP has “limited applicability” in some chancery matters.
ABA Blawg 100
July 20, 2016 § 2 Comments
The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).
If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.
[Note: I’m going to republish this every week until August 7]
Payment of Funeral Expenses in an Estate
July 19, 2016 § 3 Comments
You represent the administratrix in an estate (or she could be an executrix). She paid the funeral expenses and would like to be reimbursed. Does she have to probate a claim?
This is a frequent question, and the answer is pretty clear. No, she does not.
Here is your authority:
¶ 9. The Mississippi Supreme Court established in 1938 that a claim for funeral expenses is not required to be probated because funeral expenses are considered to be part of the cost of the administration of an estate. Tom E. Taylor Undertaking Co. v. Smith’s Estate, 183 Miss. 45, 46, 183 So. 391, 391 (1938). The supreme court noted that the requirement to probate a claim “applies alone to obligations incurred by the decedent in his lifetime.” Id. The case has never been overruled or modified. The holding and the general notion was, in fact, discussed and upheld as recently as 2010 by the United States District Court for the Southern District of Mississippi, and later affirmed by the United States Court of Appeals for the Fifth Circuit in 2012. Bell v. Texaco, Inc., No. 5:09cv192KS-MTP, 2010 WL 1490144, at *1 (S.D.Miss. April 13, 2010); Bell v. Texaco, Inc., 493 Fed.Appx. 587, at 592 (5th Cir.2012).
¶ 10. The law is clear that the ninety-day time limit in which creditors must probate claims against an estate does not apply to claims for reimbursement of funeral expenses …
In re Estate of Whitley: Whitley v. Love, 129 So.3d 260, 261 (Miss. App. 2013).
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