What to Expect in the End Times
May 11, 2020 § 3 Comments
As this blog wanes toward its conclusion, here are a few points …
- I will see that the blog continues to be accessible so that you can access its content all the way back to 2010, when it started.
- The only change will be that there will be no new posts after June 15, 2020.
- That means that if you copy some authority to use in a pleading, motion, or brief, be doubly sure that you research to determine whether it is still good authority or whether changes in the law have affected it.
- In the meantime, I’ll continue posting as I have.
The End is Near
May 8, 2020 § 24 Comments
No, not that end; this end.
June 14, 2020, will be the 10th anniversary of this blog. Ten years is a long time for anything, much less a blog that requires weekly attention.
Every June anniversary since I started this I have said that I would continue as long as I enjoyed doing it. Around the beginning of January I began to feel that the burden had begun to outweigh the enjoyment. I found that I was resisting making time to compose these posts, so that I didn’t have a cushion of at least a couple of weeks scheduled ahead, and that created unenjoyable pressure. It had begun feeling more like a chore than an enjoyable project.
I began thinking the unthinkable: how much longer can I keep this up? I wondered whether my feelings might change. After all, we all go through slumps.
But here we are in May and my feelings haven’t changed. The Covid-19 quarantine has brought home to me that I can take a more relaxed approach and still perform at a high level. It taught me, too, that I can slough off some things that I have been toting around without creating an existential threat. One of those things is this blog.
So, my friends, my last post here will be June 15, 2020, when I will bid you a bittersweet farewell. Fear not, the site will remain up; just no more new posts after the closing date.
More on the denouement Monday.
The Unobjection and its Effect on the Record
May 5, 2020 § 2 Comments
What happens when one fails to object to clearly objectionable evidence? Should the chancellor even consider that evidence? Or is it to be considered along with all other competent evidence?
Those were questions that arose out of a trial in which heirs of Mary Cook sought to set aside deeds and financial transactions in favor of John Ward based on Ms. Cook’s incompetence. During the trial testimony was elicited by Ward’s own attorney, who made no objection to the hearsay responses. After the chancellor ruled against Ward, he appealed, and one ground was admission of the hearsay.
The COA affirmed in Ward v. Est. of Cook, et al., decided April 21, 2020. Judge Jack Wilson wrote for the unanimous court:
¶22. Ward next argues that the chancellor erred by considering hearsay testimony regarding what a bank teller told Lynn Cook III. However, Ward failed to object to the testimony at trial. Indeed, although Ward fails to provide a relevant record citation, it is appears that he is complaining about testimony that his own attorney elicited. A party cannot complain about testimony that his own attorney elicited. Shaheed v. State, 205 So. 3d 1105, 1111-1112 (¶20) (Miss. Ct. App. 2016). In addition, “[w]hen . . . hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under [Mississippi Rule of Evidence] 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal.” Swinney v. State, 241 So. 3d 599, 610 (¶40) (Miss. 2018) (quoting Rubenstein v. State, 941 So. 2d 735, 764 (¶113) (Miss. 2006)). Finally, hearsay evidence that is admitted without objection becomes competent evidence for the trier of fact to consider. Shaheed, 205 So. 3d at 1110 (¶16). Therefore, this issue is entirely without merit.
Notice that the case law says that the hearsay becomes competent evidence for the court to consider, NOT that the chancellor must give it the same weight as other evidence. The chancellor could still find it to have little probative value, or find it not to be credible because of its hearsay nature. The chancellor is the finder of the weight and credibility to be assigned to evidence. In one case I had involving a will, an attorney sat mute through the examination of a witness by his opponent, not asserting a single objection, although nearly every question elicited hearsay testimony. I found that witness’s testimony not to be credible and discounted almost all of it.
Always be mindful in the course of a trial that you are not there solely to obtain a favorable ruling. You are also there to make a record that will win the case on appeal. You can’t do the latter if you fail to make timely objections. Oh, and you have to make sure that everything you need to prevail is in the record, as I pointed out in this old post.
“Quote Unquote”
May 1, 2020 § Leave a comment
“The majority of people believe in incredible things which are absolutely false. The majority of people daily act in a manner prejudicial to their general well-being.” — Ashley Montagu
“Believe nothing, O monks, merely because you have been told it … or because it is traditional, or because you yourselves have imagined it. Do not believe what your teacher tells you merely out of respect for the teacher. But whatsoever, after due examination and analysis, you find to be conducive to the good, the benefit, the welfare of all beings—that doctrine believe and cling to, and take it as your guide.” — Buddha, attributed
“I am not going to question your opinions. I am not going to meddle with your belief. I am not going to dictate to you mine. All that I say is, examine; enquire. Look into the nature of things. Search out the ground of your opinions, the for and the against. Know why you believe, understand what you believe, and possess a reason for the faith that is in you. … But your spiritual teachers caution you against enquiry — tell you not to read certain books; not to listen to certain people; to beware of profane learning; to submit your reason, and to receive their doctrines for truths. Such advice renders them suspicious counsellors. By their own creed you hold your reason from their God. Go! ask them why he gave it.” — Frances Wright
Commingling and Family Use
April 29, 2020 § 1 Comment
Allison Gaskin inherited two parcels of property during her marriage to her husband, Tony.
When it came time for a divorce, Tony took the position that the two parcels were marital, subject to division. Allison disagreed. After trial, the chancellor found the property to be part of Allison’s separate estate. Tony appealed.
In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson wrote the unanimous opinion:
¶18. During the course of the marriage, Allison inherited interests in two parcels of land: the first was a fourteen-acre tract of land referred to by the parties as the “White House property,” and the second was a sixty-five-acre tract located at 3506 Highway 18 in Rankin County. The chancellor determined that the White House property had been commingled and converted to marital property because Tony had purchased Allison’s brother’s one-half interest in the property and had “made significant contributions in maintaining the property.” The chancellor further found that the property “ha[d] been used by Tony and the boys for hunting and fishing.” The White House property was valued at $160,000, and the chancellor awarded the property to Allison as part of the division of marital assets.
¶19. Regarding the sixty-five-acre tract of land located at 3506 Highway 18, Tony testified that he occasionally bush-hogged the property and stored some Gaskin Plumbing equipment on the property. The parties stipulated that the total value of this parcel was $607,000. In contrast to the White House property, the chancellor found that the sixty-five-acre parcel Allison inherited had not been “commingled to the extent necessary to classify it as marital
property for the purpose of division between the parties.”
¶20. On appeal, Tony asserts that the chancellor erred in finding that the sixty-five-acre tract of land constituted nonmarital property. He contends that the evidence was clear that he spent substantially more time and effort maintaining the sixty-five-acre property than he did maintaining the White House property. Tony also asserts that he would hunt, fish, and play sports on the sixty-five-acre tract with the boys. He contends that these activities effectively commingled the property and converted it to marital property, not Allison’s separate nonmarital property.
¶21. “When dividing marital assets, the chancery court must first classify the property as marital property or nonmarital property.” McDonald v. McDonald, 115 So. 3d 881, 885 (¶12) (Miss. Ct. App. 2013) (citing Stewart v. Stewart, 864 So. 2d 934, 937 (¶12) (Miss. 2003)). “Marital property is defined as ‘any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.’” Id. By contrast, “[i]nter vivos gifts and inheritances are considered nonmarital property unless they have been commingled.” Id. at 886 (¶12) (citing Everett v. Everett, 919 So. 2d 242, 247 (¶19) (Miss. Ct. App. 2005)). “Assets which are classified as nonmarital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Stewart, 864 So. 2d at 937 (¶12) (quoting Boutwell v. Boutwell, 829 So. 2d 1216, 1221 (¶20) (Miss. 2002)).
¶22. Importantly, “we will not substitute our own judgment for that of the chancellor.” McDonald, 115 So. 3d at 886 (¶16). Here, we cannot say that the chancellor erred in finding that the sixty-five-acre property inherited by Allison and her brother remained nonmarital property despite Tony’s assertions that he spent substantial time maintaining the parcel and that he spent time on the property with the couple’s boys. The chancellor found that Tony’s
occasional bush-hogging, equipment storage, and recreational activities with the family were not sufficient to commingle the property with the parties’ marital assets, such that the land should be classified as marital property for the purpose of equitable division. We find that the chancellor did not abuse his discretion in treating the sixty-five acres as nonmarital property, and this issue is without merit. [Fn omitted]
I think the law of so-called “family use” which is the same as the commingling argument here, could use some attention from the MSSC. We have this case at one end, where hunting, fishing, bush hogging, and storing business equipment is inadequate to bring it into the marital estate. And on the other end we have a case such as Rhodes v. Rhodes, in which use of a separate beach condo once a year by the family and the wife’s selection of drapes for it converted it into a marital asset. I whined about Rhodes in this old post.
April 8, 2020 § Leave a comment
R.I.P. Attorney Les Prichard of Meridian, of complications from covid.
Les was retired many years and was in his 90’s. He was formerly a partner in the firm of Deen, Cameron, Prichard, and Young.
Reprise: A Fool Returneth to his Folly
April 1, 2020 § 1 Comment
Reprise is replaying an April Fool post from several years ago:
What Kind of Fool do You Think I am?
April 1, 2015 § 4 Comments
Let us today depart from our customary annual April Fool’s Day practical jokes, and instead focus our attention on that Everyman of the present era – the Fool. This is, after all, his (or her) day.
The information age is a paradisiacal era for Fools, what with social media, faux journalism, opinion outlets, and, yes, I daresay – blogs – that are fabulously fertile ground for Fools to grow and disseminate their fecund Foolishness.
Fools are in the news headlines daily. It’s the heyday of Foolishness and folly.
The birthmark of a Fool is lack of good sense and judgment. It’s a topic we’ve discussed here before.
On this their own special day, then, let’s ponder what wiser men have said of them:
“The trouble ain’t that there is too many Fools, but that the lightning ain’t distributed right” — Mark Twain
“A Fool always finds a greater Fool to admire him” — Nicolas Boileau-Despréaux
“I have great faith in Fools — self-confidence my friends will call it” — Edgar Allen Poe
“A man may be a Fool and not know it, but not if he is married” — H.L. Mencken
“A Fool must now and then be right by chance” — William Cowper
“A Fool sees not the same tree that a wise man sees” — William Blake
“For, as blushing will sometimes make a whore pass for a virtuous woman, so modesty may make a Fool seem a man of sense” — Alexander Pope
“A prosperous Fool is a grievous burden” — Aeschylus
“Even a Fool, when he holdeth his peace, is counted wise” — Proverbs, 17:28.
“The greatest men may ask a Foolish question, now and then” — John Wolcot
There is actually a patron saint of Fools. Saint Simeon, the Holy Fool, a sixth-century monk, is revered as the patron saint of “holy fools and puppeteers.” Holy Fools, as I understand it, are those who are “Fools for Christ’s sake” (1 Cor. 4:10), rejecting riches and other worldly things for spiritual pursuits. I am not here to judge, but Simeon’s activities seem to be of the more outré variety: dragging a dead dog through the gate of a city, inciting schoolchildren to call him crazy; pretending to have a limp, and other times jumping around; dragging himself along on his buttocks; tripping people walking by; baying and staring at the new moon; thrashing about; extinguishing lights in church and throwing nuts at women; overturning the tables of pastry chefs; and doing other similar capers that got him insulted, beaten, and abused, all of which he endured with good patience. By today’s foolish standards, those kind of stunts seem more mildly eccentric than foolish, but, hey, I guess that’s what made him a holy Fool as opposed to a wholly Fool.
Oh, and I still don’t understand what puppeteers did to be dragged into this discussion.
While we’re on the subject of saints, I should mention that April 1 is the feast day of St. Hugh of Grenoble, per the Catholic calendar. Although he lived in the eleventh century, he sounds like the kind of guy who faced down some of the same kinds of foolishness that nettle us today. This from a Catholic web site:
Hugh, who served as a bishop in France for 52 years, had his work cut out for him from the start. Corruption seemed to loom in every direction: the buying and selling of Church offices, violations of clerical celibacy, lay control of Church property, religious indifference and/or ignorance. After serving as bishop for two years, he’d had his fill. He tried disappearing to a monastery, but the pope called him back to continue the work of reform.
That just goes to show that, when it comes to Fools and foolishness, the passage of centuries does not appear to have any significantly remedial effect. Jonathan Swift spoke in 1726 of a Fool’s Folly in Gulliver’s Travels:
“He had been eight years upon a project for extracting sunbeams out of cucumbers, which were to be put in phials hermetically sealed, and let out to warm the air in raw, inclement summers.”
Come to think of it, that sounds suspiciously like the prospectus for a 2015 Silicon Valley IPO offering that would likely attract billions from investors.
Which brings to mind the old adage, “A Fool and his money are soon parted.”
Have a happy and prosperous April Fool’s Day.
Reprise: Avoiding RFA Catastrophe
March 30, 2020 § Leave a comment
Reprise replays posts from the past that you may find useful today.
The Price of Admission
August 17, 2016 § 1 Comment
Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.
It can cut both ways, though.
In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.
The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.
Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:
¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.
However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
Id. (quoting M.R.C.P. 36(b)).
¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).
¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.
¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:
[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.
After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”
¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.
You can take away at some points:
- Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
- The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
- The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
- Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
- But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
- Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.
The Better Chancery Practice Blog 