Legislation Watch
February 5, 2015 § 6 Comments
Here is a list of bills that may affect chancery court practice, are still pending before the legislature, and are “not dead” as of 2-3-15:
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Rule against perpetuities; revise with respect to certain trusts. |
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Estates; provide for a statutory order of abatement for shares of distributees of property of a deceased. |
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Foreign executor or administrator; revise authority of financial institutions to turn over property or funds of a decedent to. |
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Conservator; allow appointment for a single transaction. |
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Courts; prohibit from applying foreign law under certain circumstances. |
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Divorce; revise habitual cruel and inhuman treatment to include verbal, emotional or psychological abuse. |
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Commercial Real Estate Broker Lien Act; clarify definition of “commercial real estate” under. |
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Title disputes; clarify jurisdiction of state courts in certain. |
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Domestic violence; revise procedures related to. |
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Child abuse; clarify mandatory reporting by school officials. |
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Child neglect; add children left alone in motor vehicles to definitions of. |
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Estate bond requirement; authorize court or chancellor to waive. |
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HB 703 |
Judicial redistricting; revise. |
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Visitation rights; amend Grandparents’ Rights Law to include great-grandparents. |
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Suits against the state; Supreme Court to have original jurisdiction for claims seeking injunctive relief. |
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Landlord-tenant; provide for disposition of personal property remaining on the premises after removal of the tenant. 01/28 (H) Title Suff Do Pass |
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HB 713 |
Mississippi Private Investigation Regulatory Act; create. |
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Property Insurance Clarity Act; create. |
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Court reporters; increase salary for those in circuit, chancery and county courts. |
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HB1101 |
Professional privilege tax; impose on persons who practice in state and who are not domiciled in and do not maintain regular place of business in state. |
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HB1319 |
Marshals and constables; revise fees charged for service of process. |
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Domestic violence; clarify entry of criminal protection orders in the registry. |
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False report of child abuse or neglect; provide criminal penalties and civil liability. |
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Visitation; allow to third party under certain limited circumstances. |
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Civil commitment; include nurse practitioners as authorized evaluators. |
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Children in custody of DHS; require notification of parents of child’s siblings in conformity with federal law. |
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Child support; may continue past age of majority for a disabled child. |
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Court reporters; increase annual salary of. |
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SB2231 |
Constables; revise fees charged for service of process. |
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Easements; clarify purchase of for access. |
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Uniform Interstate Family Support Act; create (corrected). |
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Mississippi Uniform Limited Partnership Act; revise and expand. |
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Real property liens; clarify Notice of Contest of Lien form. |
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SB2390 |
Service of process; sheriff may retain fee for attempt to serve. |
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SB2542 |
Limited liability companies; delete repeal clause on fees. |
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Legal proceeding; child witness to receive accommodations. |
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Trial courts; redistrict. |
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Mourn the loss and commend the life and public service of former Senator and Judge Ray Montgomery. |
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Mourn the loss and pay tribute to the judicial leadership of former Mississippi Supreme Court Chief Justice Roy Noble Lee. |
The Courthouses of Mississippi
January 30, 2015 § 8 Comments
Starting next month, I’m going to be posting photos of the courthouses of Mississippi.
The twist is that I am asking you to send me your photos to be published here. Here are the guidelines:
- The pic must have been taken by the submitter. Cell-phone pics are welcome.
- Sunshine shots only; no low-contrast, cloudy days.
- Please avoid power, cable, and telephone lines in your photos. Your favorite people or clients are fair game, though, if they are okay with it.
- You will be credited by name, unless, for some reason you’d rather not.
- I’ll post as many as 4-6 a month, provided I have them.
You can email them to me at lprimeaux@comcast.net.
By my reckoning, there are some 91 or 92 courthouses in Mississippi, and several more when you count separate chancery buildings, so this could take some time unless you send me your pics asap. I’m relying on you to provide me with the full compliment. Next time you head to a courthouse, take a minute to send me a photo.
If this goes well, we may try the courtrooms of Mississippi next.
Reprise: Equitable does not Mean Equal
January 29, 2015 § Leave a comment
Reprise replays posts from the past that you might find useful today.
EQUITABLE DIVISION AND MARITAL FAULT
August 24, 2011 § 4 Comments
It is almost a platitude of Mississippi law that, “Courts may divide marital assets between divorcing spouses in a fair and equitable manner — equal division is not required.” Bell, Mississippi Family Law, § 6.01[4].
The sticking point is where to draw the line between “fair and equitable” and “equal.” The appellate decisions come in all sizes, colors and flavors.
Bond v. Bond, decided by the COA August 16, 2011, is the latest iteration on the point. In that case, Jimmie Lee proved that his wife, Donna, had committed adultery during their four-year marriage. The chancellor awarded Jimmie Lee 90% of the equitable division, and gave Donna the remaining 10%. Jimmie Lee appealed, aggrieved that Donna got such a generous share, and charged that the chancellor erred in failing to make sufficient findings of Donna’s adultery.
Judge Maxwell’s opinion sets out the applicable law about as clearly as can be done:
In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:
(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.
Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009) (citing Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss. 1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So. 2d 1004, 1013-14 (¶26) (Miss. 2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So. 3d 1251, 1264 (¶45) (Miss. Ct. App. 2009). Rather, we examine the chancellor’s judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶52).
In Carrow v. Carrow, 642 So. 2d 901, 905 (Miss. 1994), the Mississippi Supreme Court held that a chancellor erred in finding a wife’s “adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce.” The Carrow court instructed that chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. See id. at 904 (citing Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994)). Rather, “marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Id. at 904-05 (citing Ferguson, 639 So. 2d at 927).
The court found that the chancellor had, indeed, taken into consideration Donna’s fault when he considered the Ferguson factor dealing with the parties’ relative contributions to the stability and harmony of the marriage. The chancellor had found under that factor that:
“Neither Jimmie nor Donna did all they could to provide stability and harmony to the family. Donna became infatuated with another man and her romantic relationship with this third party caused the dissolution of the marriage.”
So here are a few points to ponder about this decision:
- The rule that equitable division does not require an equal division, but only a fair division, is alive and well.
- A 90-10 split in equitable distribution will be found fair if the judge addresses all of the Ferguson factors and justifies the decision.
- The judge is only required to address all of the Ferguson factors, not to analyze them in excruciating, lengthy detail. In this case, the chancellor’s two-sentence recitation was found adequate to support the award.
This case reminded me of the student who got a 90 on a test and wanted the teacher to re-grade it in hopes of an even better grade. Jimmie Lee’s “grade” stayed the same after the appeal, but it’s somewhat of a head-scratcher why he appealed in the first place, given the pretty clear holding in the Carrow case.
Scene in Mississippi
January 23, 2015 § 8 Comments
Where?
And what is the distinction of this scene?
January 12, 2015 § 3 Comments
No posts this week due to a death in the family.
Posts resume next week.
“Quote Unquote”
January 9, 2015 § Leave a comment
“What one needs to do at every moment of one’s life is to put an end to the old world and to begin a new world.” — Nikolai Berdyaev
“The only joy in the world is to begin. It is good to be alive because living is beginning, always, every moment.” — Cesare Pavese
“Begin; to begin is half the work. Let half still remain; again begin this, and thou wilt have finished.” — Ausonius
A New Judge Blog for 2015
January 5, 2015 § Leave a comment
COA Judge Kenny Griffis has a new blog focusing on appellate practice. Here’s the link.
Judge Griffis is in a position to offer some valuable insight into the workings of our appellate courts, as well as useful observations about appellate cases. He’s also a good writer who is knowledgeable about Mississippi law, so this should become a useful resource.
I notice that he stole the blog’s tagline “News and Commentary of Mississippi Law” at least in part from the anonymous Lost Gap blog. Or maybe it’s coincidental.
The Gift of Care
December 23, 2014 § 2 Comments
A message for this season from Henri J.M. Nouwen.
Why is it that we keep the great gift of care so deeply hidden? Why is it that we keep giving dimes without looking into the face of the beggar? Why is it that we do not join the lonely eater in the dining hall but look for those we know so well? Why is it that we so seldom knock on a door or grab a phone just to say hello, just to show that we have been thinking about each other? Why are smiles still hard to get and words of comfort so difficult to come by? … Why do we keep bypassing each other on the way to something or someone more important?
Maybe simply because we ourselves are so concerned with being different from others that we do not even allow ourselves to lay down our heavy armor and come together in a mutual vulnerability. Maybe we are so full of our own opinions, ideas, and convictions that we have no space left to listen to the other and learn from him or her.
There is a story … about a university professor who came to a Zen master to ask him about Zen. Nan-in, the Zen master, served him tea.
He poured his visitor’s cup full, and then kept pouring. The professor watched the overflowing until he could no longer restrain himself. “It is overfull. No more will go in!” “Like this cup,” Nan-in said, “you are full of your own opinions and speculations. How can I show you Zen unless you first empty your cup?”
To care means first of all to empty our own cup and to allow the other to come close to us. It means to take away the many barriers which prevent us from entering into communication with the other. When we dare to care, then we discover that nothing human is foreign to us, but that all the hatred and love, cruelty and compassion, fear and joy can be found in our own hearts. When we dare to care, we have to confess that when others kill, I could have killed, too. When others torture, I could have done the same. When others heal, I could have healed, too. And when others give life, I could have done the same. Then we experience that we can be present to the soldier who kills, to the guard who pesters, to the young man who plays as if life has no end, and to the old man who stopped playing out of fear of death …
When Jesus had received the five loaves and fishes, he returned them to the crowd, and there was plenty for all to eat. The gift is born out of receiving. Food came forth out of kinship with the hungry, healing out of compassion, cure out of care. he or she who can cry out with those in need can give without offense.
As long as we are occupied and preoccupied with our desire to do good but are not able to feel the crying need of those who suffer, our help remains hanging somewhere between our minds and our hands and does not descend into the heart, where we can care. But in solitude our heart can slowly take off its many protective devices and can grow so wide and deep that nothing human is strange to it.
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Merry Christmas and Happy Holidays to all.
This piece is excerpted from Out of Solitude: Three Meditations on the Christian Life, by Henri J.M. Nouwen, Ave Maria Press. I found this in the December, 2014, print issue of The Sun Magazine.
