Reprise: Checklists
April 19, 2016 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Checklists, Checklists, Checklists
August 12, 2014 § 10 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
Would a Podcast Help?
April 18, 2016 § Leave a comment
We’ve visited here before some ways to educate your clients about what to expect and how to perform in the courtroom.
Sometimes, though, as you speak of these things with your client you get the distinct impression that your words are not making contact with gray matter. The client fidgets, eyes are glazing over, he keeps interrupting with impertinent what-if questions, and the whole thing seems like a waste of time. Worse, even after going over these things with a seemingly receptive client, she performs in the courtroom like you’ve never met before. What else can you do?
Maybe a podcast would help.
You can provide your client with a link to a podcast where you repeat all the helpful guidance your client needs to be at his or her best in the courtroom. The beauty is that the client can listen to it at leisure– hopefully when he or she is more focused, can listen to it 100 times if desired, and it will provide a measure of comfort to address all those “what-if” questions. Most importantly, time spent by the client listening to podcasts is time not spent calling and emailing you.
Here’s a link I found to a podcast by a multi-state domestic litigation firm that you might find useful in coming up with your own.
R.I.P. Judge Dale
April 15, 2016 § Leave a comment
It was only because of travel out of the country, with sketchy internet service — and not by oversight — that I did not pay due respect to the passing of a major figure in Mississippi Chancery Court practice. Retired Chancellor Sebe Dale, of Columbia, died April 5, at age 94.
Here is the official MSSC announcement:
Retired Chancellor Sebe Dale Jr. died Tuesday, April 5, at his home in Columbia. He was 94.
A funeral service for Judge Dale is scheduled for 11 a.m. Friday, April 8, at First Baptist Church in Columbia. Visitation will begin at 9:30 a.m. – his usual time for starting court. Interment will be at Woodlawn Cemetery. Hathorn Funeral Home in Columbia is handling arrangements.
Judge Dale retired Dec. 31, 2010, after 42 years on the bench, 32 of that as chancellor of the 10th Chancery District. He was a Youth Court referee for 10 years before he was elected to the Chancery bench. The 10th Chancery District includes Forrest, Lamar, Marion, Pearl River and Perry counties.
Supreme Court Justice Dawn Beam remembered Chancellor Dale as a mentor. She followed him as 10th District Chancellor when he retired. “Judge Dale lived a life of service to his state and country in the military, as a lawyer, and then as a Chancery Judge. As a lawyer, he taught me respect for the court and love of the law. He retired from the bench just short of 90 years old. When I followed him as Chancellor, I constantly reflected on things he taught me. We have lost a humble servant and dear friend today, and Judge Dale is no doubt hearing the words ‘Well done.’ “
Court of Appeals Judge Eugene Fair of Hattiesburg served alongside Judge Dale as a Chancellor for the 10th Chancery and practiced law before him. “He is my hero. He was one of those people who teaches you how the job is done. He was a judge’s judge. If you want to be a good judge, you try to be like Sebe Dale.”
Judge Fair said Judge Dale was always available to the lawyers. “He was one of those people who went to his office every Saturday morning and probably on Sunday afternoons. If you needed to talk to him, you could find him.” Judge Dale had that same work ethic as a lawyer in private practice. Judge Fair recalled handling a child visitation dispute in which Judge Dale represented the other parent. “We called Mike Sullivan, who was chancellor, on Christmas Day because the daddy and mama were fighting over visitation. We showed up in court the 26th day of December, whatever year that was, and tried that case. He was always available.”
Tenth Chancery Court Administrator Lisa Martin Stringer worked for Judge Dale for 13 years, from the time she was a high school senior until he retired. Judge Dale gave prayerful consideration to the decisions he was called upon to make in family law disputes. “He worked very hard and the decisions didn’t come easy,” Stringer said. “He wanted to do what was right for those children….I always remember him making sure that he had the best interests of the children at heart. He prayed for guidance on how to best serve those children.” Stringer said that Judge Dale called termination of parental rights “the closest thing to a death sentence in Chancery Court. His happiest day in court was a day that he got to do an adoption. He got to create a family that day.”
The building where Judge Dale held court in Columbia, formerly known as the Chancery Court Annex, was renamed “The Sebe Dale, Jr. Chancery Court Building” in his honor in November 2010, shortly before he retired.
At the ceremony to rename the courthouse, Judge Dale said that he followed in the footsteps of his father and grandfather. His grandfather, John B. Dale, was president of the Marion County Board of Supervisors when the main courthouse was built in 1905. “He set a track for me and my father set a track for me. I’ve done my best to be true to it. Thank you so much,” he said at the ceremony.
Judge Dale was a member of the Mississippi Judicial College Board of Governors for 22 years, 18 of that as chairman. He was a member of the State Penitentiary board for eight years. He served as chairman of the Conference of Chancery Judges and of the Judicial Advisory Study Committee, and as president of the Marion County Bar Association.
Judge Dale was a graduate of Columbia public schools, Mississippi College and the University of Mississippi School of Law. He was admitted to the Mississippi Bar in 1948, and engaged in the private practice of law for 31 years. He was a recipient of numerous awards, including the Chief Justice Award, the Mississippi Bar Lifetime Achievement Award and the Mississippi State University Prelaw Society’s Distinguished Jurist Award.
He was a veteran of World War II, having served four years of active duty in the U.S. Army Air Corps. He was a reservist for 27 years, including service in the Judge Advocate General Corps. He retired at the rank of Colonel in 1981.
A POA No-No
April 14, 2016 § 2 Comments
An elderly couple shuffles into your office After exchange of pleasantries, the wife explains that the husband has been diagnosed with dementia, although he is still competent at this point. The two of them want the wife to have power of attorney (POA) so that the wife can execute deeds and other documents necessary to deal with husband’s business when he is no longer competent to do so. One thing she specifically mentions is that they would like to sell their home in the country and move into town.
You have your secretary draft a durable POA per MCA 87-3-101, et seq. using the forms in your computer, let them be executed, and send them on their way. Did you cover all the bases?
Look at MCA 89-1-29. The very last sentence, added in 2008, reads this way: “All powers of attorney authorizing any conveyance, mortgage, deed of trust or other incumbrance upon a homestead shall designate an attorney in fact other than a spouse and shall comply with the provisions of Chapter 3 of Title 87.” [Emphasis added] Chapter 3 of Title 87 includes all the statutes bearing on POA’s.
Since homestead was specifically mentioned (the home in the country), you should have explained that you must also do a POA for a child of theirs or some other trusted person for sale of the homestead. As for the non-homestead property, the wife as POA would legally still be able to convey it without participation of a third party. The proscription applies only to homestead.
A caveat: Senate Bill 2574, the “Mississippi Uniform Power of Attorney Act” has passed the Senate and gone on to the House. Unless and until it changes the law on this point, the current 89-1-29 controls.
Embarrassment is not an Adverse Effect
April 12, 2016 § 3 Comments
Brandi Spears and her then-husband, Ken Moreland, agreed in a 2012 PSA that Brandi would have physical custody of their child, and they would share joint legal custody. (Note that Brandi is the spelling in the style of the case, but Brandy is the spelling used throughout the opinion).
In 2013, Brandi sued Ken for modification, claiming that there had been a material change in circumstances in that Ken had failed to pay some of the child’s expenses as he agreed, and seeking sole legal custody, a change in the visitation schedule, an order for Ken to have a mental evaluation, and attorney’s fees.
The chancellor did modify the legal custody to award Brandi sole legal custody and other relief. From that ruling, and from the other relief, Ken appealed.
In its decision in Moreland v. Spears, handed down March 1, 2016, the COA, by Judge Griffis, recited the familiar rule that modification of custody requires a showing, by a preponderance of evidence, that there has been (1) a material, substantial change in circumstances since entry of the original custody order that has (2) had an adverse effect on the child, and (3) it is in the child’s best interest to change custody.
After analyzing the evidence of material change, the opinion turned to the proof of adverse effect:
¶12. Despite whether these instances constituted a material change in circumstances, it was incumbent upon Brandy to show these changes had an adverse effect on Lauren. Brandy’s only contention of an adverse effect was that some of Ken’s actions embarrassed Lauren and, as Lauren grew older, Brandy speculated that the extent of embarrassment would increase. Brandy, however, fails to show how embarrassment equates to an adverse effect. Lauren continued to performed well in school and received satisfactory marks in her progress reports. As such, we find that Brandy failed to prove any adverse effects on Lauren.
¶13. This Court has held far more egregious conduct did not warrant a change in custody when no adverse effect occurred. In Sudduth v. Mowdy, 991 So. 2d 1241, 1245 (¶14) (Miss. Ct. App. 2008), this Court found the minor child’s dental problems, the mother’s inappropriate relationships, and the allegations that the mother gave the child anti-psychotic drugs did not warrant a modification of custody from the mother to the father when the father failed to prove any adverse effects on the child.
¶14. Likewise, in Wikel v. Miller, 53 So. 3d 29, 35-36 (¶¶15, 17) (Miss. Ct. App. 2010), this Court affirmed the chancellor’s findings that the mother’s interference with the father’s visitation, the minor children’s behavioral problems requiring counseling, and the mother’s prior relationships did not warrant a modification in custody when the minor children excelled in school and showed no adverse effects. For these reasons, Brandy failed to demonstrate that Lauren suffered from adverse effects warranting a modification.
I might add that, in my experience, most teenagers spend the greater part of their teen years being embarrassed and mortified about one thing or another, so it’s a wise rule not to let something as serious as modification turn on that kind of spasm of emotion.
What isn’t There Can Make a Big Difference
April 11, 2016 § Leave a comment
Dee Myrick filed a Complaint for Divorce against her husband, John, in 2013. The complaint was based on the fault ground HCIT. At a temporary hearing, the chancellor ordered John to pay temporary alimony.
Later, the parties withdrew fault allegations and entered into a consent for divorce on the ground of irreconcilable differences. The contested issues submitted for adjudication were: “property division including allocation of debt”; attorney’s fees; and “division of all real property.” Alimony was not mentioned.
Following a trial and rehearing motions, the chancellor divided the marital estate and awarded Dee $600 a month in periodic alimony. John appealed the award of alimony.
In Myrick v. Myrick, decided February 23, 2016, the COA reversed on the issue of alimony and remanded. Judge Barnes wrote for the court:
¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:
If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.
Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a creature of statute,” and the parties must strictly adhere to the statutory mandates of irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).
¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable differences. She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November 2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month to Dee in lieu of the house payment.
¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable differences divorce. It listed matters the chancellor should decide as “property division, including allocation of debt”; attorney’s fees; and “division of all real property.” No mention was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault grounds. The chancellor had, however, ordered the temporary relief of alimony when the divorce sought was based on fault grounds, rather than irreconcilable differences.
¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable differences-divorce case because the consent failed to comply with required statutory language, and the parties failed to set forth with specificity the issues to be decided by the court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16). Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he cannot now award it.
¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss. Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to consider an award of attorney’s fees in a divorce action where the parties did not include this issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support, and equitable distribution because the parties stated in their consent agreement the only issue the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d at 926 (¶12).
¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of “property division” analysis, and is therefore proper here, citing the Ferguson factor regarding “the extent to which distribution can eliminate future periodic payments.” Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute is clear that the resolution of all issues must be specifically set forth in the consent agreement. The court’s award of periodic alimony was without authority and must be reversed.
The court remanded rather than render for Ken because the chancellor had originally ordered Ken to pay Dee lump-sum alimony “based on need.” The COA instructed that, on remand, the chancellor was to clarify whether the lump-sum alimony was part of property division, which could be reinstated, or was alimony, which could not.
It makes perfect sense that, if something is left out of a negotiated agreement such as a consent, it should be assumed that its omission came about as a result of negotiation. The statute requires that all contested issues be clearly set forth. If you leave something out, unless the other side agrees to let it in, you won’t be able to get it in.
“Quote Unquote”
April 8, 2016 § Leave a comment
“Go to the edge of the cliff and jump off. Build your wings on the way down.” — Ray Bradbury
“Either life entails courage, or it ceases to be life.” — E. M. Forster
“I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin, but you begin anyway and see it through no matter what.” — Harper Lee in To Kill a Mockingbird
What You Need to Tell Your Client About Court Appearance
April 6, 2016 § 2 Comments
Your client will be a whole lot more effective and confident if you will instill a few principles about appearing in court. Here are some I would recommend:
- Always be on time. Nothing says “I don’t respect this court and anything about it” more than failing to be on time. Being late is a good way to start off on the wrong foot, sort of like spotting your opponent 3-4 baskets at the beginning of a hoops game, or a touchdown in football, or 5 runs in baseball. If your client is the chronically-late type, suggest that he calendar the event for a half-hour earlier than actually scheduled. If parking is a problem at your courthouse, urge your client to build in an extra 15 minutes for parking.
- Dress for success. Business casual is fine. T-shirts with obscene messages, jeans with more holes than cloth, dirty and smelly clothes, and any attire that gives the impression that it was acquired from a dumpster will send an overly-negative message. I used to tell clients to avoid school logos and colors: if the judge went to a rival school, he or she may wonder whether there is some nose-thumbing at play; if he or she went to the same school, the judge may think there’s some brown-nosing going on.
- Speak up. The judge has to hear what the witness says if the judge is going to take it into account. Not every courtroom has state-of-the-art amplification.
- Don’t speak over anyone. This is a chronic problem that can result in an unintelligible record. Tell your client to wait until the question is completed before speaking. Never interrupt the judge.
- When you hear “Objection” or “Object,” stop speaking. Let the judge rule and follow the instructions of the court. Objections are one way you can protect your client, and if she persists in answering over objection, she may hurt her case.
- Answer the question asked; don’t volunteer. Most questions call for a simple “yes,” “no,” “I don’t know,” or a simple date, fact, number, or the like. Volunteering information is almost always unhelpful, and can be damaging. Example: “No, I have never been convicted of a felony … but … I have fourteen convictions for petty theft, shoplifting, and simple assault.” And remember, “I don’t know” is a perfectly legitimate answer; wading off into speculation will only make trouble.
- Be familiar with the 8.05. Know how the figures for income, expenses, debt, and assets were derived. Be able to explain and defend them. It’s never impressive when a witness says something like “I don’t know where that $250 figure for entertainment came from; I guess my lawyer put that there.
- Attitude makes a difference. A beautiful butterfly receives more favorable treatment than a scorpion. An earnest witness who clearly is trying to be truthful and doing her best will receive more favorable consideration than a petty, spiteful, sarcastic, bitter, argumentative, evasive witness. It’s just human nature.
- Know your case. Help your client understand what is needed to prove his case, and the best ways to answer truthfully the key questions. Go over the major points that he will face on cross examination.
- Your judge has idiosyncracies. Everyone does, even judges. If you know from experience that the judge does not want people chewing gum in the courtroom, caution your client not to d it. If your judge hates cell phones going off, warn the client to turn his off. And so on.
The Probate Lawyer’s Fiduciary Duty
April 5, 2016 § Leave a comment
What exactly is the duty owed to beneficiaries by a lawyer who represents the executor of an estate? Is there a fiduciary relationship?
In the MSSC case Gibson v. Williams, Williams & Montgomery and Montgomery, decided March 10, 2016, the court raised that question in the context of a legal malpractice claim.
Bobby Gibson had sued the lawyer and law firm over administration of his deceased wife’s estate, claiming wrongful conduct. The defendants filed a motion for summary judgment, which the Special Chancellor granted, and Bobby appealed.
On appeal, the MSSC reversed. One of the arguments defendants had raised in the summary judgment was that they owed Bobby no fiduciary duty, and hence he could not sue them for violation of a duty they did not have. Justice Dickinson addressed the point in the court’s opinion:
¶50. It is axiomatic that “a fiduciary duty must exist before a breach of the duty can occur.”[Fn 43] Attorney-client relationships give rise to fiduciary duties as evidenced by this Court’s recognition of legal-malpractice claims based on fiduciary obligations. [Fn 44] And as discussed earlier, we hold that a genuine issue of material fact remains on the issue of whether such a relationship existed between Montgomery and Bobby.
[Fn 43] Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485 (Miss. 2010) (citing Black’s Law Dictionary 564 (5th ed. 1979)).
[Fn 44] See Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).
¶51. But the absence of an attorney-client relationship does not foreclose the possibility of the existence of a fiduciary relationship. In Mississippi, “[a] fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears ‘on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.’” [Fn 45] So fiduciaries’ duties may arise as a matter of law from certain specified relationships such as attorney and client; or they may be created by the facts and circumstances of a particular relationship, taking into account the above factors.
[Fn 45] Id. (citing Milner v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988); Matter of Estate of Haney, 516 So. 2d 1359 (Miss. 1987)) (emphasis added).
¶52. In Baker Donelson, we recognized that, for decades, this Court has held that fiduciary relationships can arise in a variety of contexts, and that relationships between attorneys and third parties can give rise to a fiduciary relationship—and the requisite fiduciary duties—despite the absence of an actual “attorney-client” relationship. [Fn 46] Accordingly, the general rule in Mississippi is that, under certain facts and circumstances, attorneys can acquire fiduciary obligations to third parties who are not their clients where no attorney-client relationship is present. [Fn 47] Fiduciary relationships often turn on questions of fact related to exertion of influence, whether a party trusted and relied on another party, and whether the reliance was justified.
[Fn 46] Baker Donelson, 42 So. 3d 474, 485 (Miss. 2010).
[Fn 47] Id. 23
¶53. In other words, while it is true that we have never held—and we do not hold today—that attorneys for estates always owe fiduciary duties to every estate beneficiary, we see no reason to carve out a rule of special protection for estate attorneys, exempting them from any beneficiary claim of a fiduciary relationship. An attorney for the estate may, under certain circumstances, owe fiduciary duties to a beneficiary of the estate based on the same considerations relevant to determine fiduciary duties to all third parties. The existence of these fiduciary relationships are questions to be determined in the trial court, and here, we believe sufficient evidence exists in the record for a factfinder to conclude that Montgomery owed Bobby fiduciary duties, even without a finding of an attorney-client relationship.
¶54. And, should the trial court find that Montgomery assumed fiduciary duties to Bobby, we also find that—viewing the facts and allegations in the light most favorable to Bobby—Montgomery allegedly induced Bobby into signing a petition without first informing him of the consequences. This, in effect, caused Bobby to waive his statutory rights to contest and renounce Debbie’s will. Montgomery approached Bobby under circumstances which, if not enough to create an attorney-client relationship, could support an inference of dependence and trust, as Montgomery purported to have Bobby’s interests in mind and to exercise control over Debbie’s estate. There is evidence in the record to support Bobby’s claim that Montgomery coerced or compelled him to deduct $50,000 of life-insurance proceeds to fund a bequest in Debbie’s will. These acts, if true—and assuming a fiduciary relationship is found to have existed—would constitute a breach of that fiduciary duty. So genuine issues of material fact remain regarding Bobby’s fiduciary-duty claims.
¶55. To be clear, we do not address today the duties of attorneys who represent executors and administrators of estates. Montgomery claims he was the attorney for the estate and not for the executor of the estate. In thirty filings with the trial court, Montgomery was either listed as or signed as the “attorney for the Estate.” Indeed, we are unable to locate a single filing in which Montgomery identifies himself as, or claims to be, an attorney for the executor. Additionally, Montgomery is identified as attorney for the estate within the trial transcript and the appellee’s brief. And finally we note that, within the first five minutes at oral argument, Montgomery’s own counsel unequivocally stated that nothing in the record indicates anything other than that Montgomery and his law firm acted as attorneys for the Estate.
So the answer to the question, then, is “quite possibly.” It’s something to bear in mind as you go about the business of handling an estate. I recommend you read the entire opinion, especially the recitation of facts.
April 4, 2016 § Leave a comment
I am globetrotting for the next little while. Posts are stockpiled and will be automatically published; however, I will not likely get to approve comments. So if you have a comment sitting there out of view, be patient. I will get to it when I do.
Ciao.
The Better Chancery Practice Blog 