Uncategorized | The Better Chancery Practice Blog

May 25, 2020 § Leave a comment

State Holiday

Courthouse closed

Reading

May 22, 2020 § Leave a comment

Half of a Yellow Sun by Chimamanda Ngozi Adichie. The title refers to the golden rising-sun emblem on the national flag of the short-lived (1967-1970) Republic of Biafra (Bee-afra) that seceded from Nigeria, prompting a bloody tribal civil war in which millions were slaughtered and starved to death, and this is a story of that era. We see the unfolding events through several characters, including a professor, twin sisters from a patrician family, a house servant, an Englishman, and their interactions with each other and various minor figures. Adichie is a skilled storyteller adept at developing character, and she has a keen eye for description that she deftly crafts into entertaining prose. Fiction.

A Visit from the Goon Squad by Jennifer Egan. Pulitzer-Prize-winning “novel” that is actually a set of 13 discrete stories through which many of the same characters weave in and out as time oscillates from story to story between the present, past, and even future. The style and voice vary from chapter to chapter, rewarding the reader with a kaleidoscope of expression and points of view. Not only is the structure of the novel unorthodox, but in one chapter Egan adroitly describes a family’s interrelationships through a teenager’s power-point presentation. The writing is bright and crisp, the characters vivid and sharply drawn. Highly recommended. Fiction.

Calypso by David Sedaris. Yet another collection of amusing essays. We have come to expect laugh-out-loud passages in Sedaris’s work, and there are some here. But his reflections in this book on aging, his father, and his siblings sound a more somber, reflective tone. Still, if you enjoy Sedaris, you will enjoy this collection. Fiction or non-fiction; you decide.

Never Enough by Judith Grisel. A PhD neuroscientist and former addict explains addiction from a scientific and experiential point of view. If you’re like me, you will skim the chemistry and get right to the explanations of how addiction occurs, how different substances have different effects, and what is and is not effective treatment. Non-fiction.

A Different Drummer by William Melvin Kelly. A lost treasure, first published in 1962, but largely overlooked and overshadowed as civil-rights confrontations were beginning to grab headlines and attention. Rediscovered and republished in 2018, it is the story of a fictional southern state located between Mississippi and Alabama, and the exodus of its black inhabitants. Kelley, who was black (he died in 2017), tells the story from the viewpoint of the white people who become enraged over the development, with predictable results for that era. Fiction.

The Winter Soldier by Daniel Mason. An Austrian medical student joins the army of the Holy Roman Empire in World War I and is assigned to a field hospital in Hungary where he falls in love with a mysterious nun serving as a nurse. Mason’s writing sparkles, but the plot is thin to the point of transparency, and the book tends to plod toward its finish. Fiction.

An Unexpected Life by Mary Ann Connell. A bored housewife surreptitiously enrolls in law school against her husband’s wishes and goes on to become house counsel for the University of Mississippi, guiding the school through some of its most momentous legal challenges. This book is a Mississippi Who’s Who of the 60’s through the 2000’s, but more significantly is the tale of an indomitable spirit. A native of Louisville and daughter of a small-town lawyer, Connell’s poignant childhood molded her into an overachiever who relentlessly pursued education and excellence. Non-fiction.

The Warmth of Other Suns by Isabel Wilkerson. The remarkable story of the great migration of blacks from the south to the north from 1915-1970. Told through the lens of three emigrants, one from Mississippi, another from Louisiana, and the third from Florida, the book details the struggles, poverty, and oppression that drove them to seek better fortunes in Chicago, Los Angeles, and New York. They found greater freedom and prosperity, but experienced more discrimination and diminished opportunity than they expected. Woven through the stories of the three is the greater story of the millions who were a part of the mass movement. Non-fiction.

The Jersey Brothers by Susan Mott Freeman. Three brothers from New Jersey enlist in the Navy in World War II. One is stationed in the Phillippines when the islands are overrun by the Japanese and he is taken prisoner. This is the story of the family’s quest to find him. Non-fiction.

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.

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.