The Better Chancery Practice Blog

Many of these have been addressed in prior posts. This puts them all together in one place.

Lee v. Lee, 78 So.3d 326 (Miss. 2012)

Even in uncontested cases, it is essential that your judgment address all of the applicable factors, such as Albright, Ferguson, Martin v. Coop, etc.

Lone Star Industries, et al. v. McGraw, MSSC February 2, 2012 and McKnight v. Jenkins, MSSC February 14, 2013

If you file an amended pleading outside the time allowed and do not get leave of the court to file an amended pleading, the amended pleading is a nullity and should be stricken by the court.

Bolivar v. Waltman, COA April 3, 2012

All parties who would be necessary parties in a child custody case are required to be joined in a suit for grandparent visitation. This requirement of MCA 93-16-5 is jurisdictional, and may be raised by the trial court on its own, or by the appellate court on its own.

Cates v. Swain, COA April 17, 2012

Equitable remedies are not available to unmarried parties who acquire assets titled in only one party’s name through the contributions of both. The MSSC has granted cert in this case.

McMullin v. McMullin, COA May 29, 2012

If the chancellor’s opinion resolves fewer than all of the issues in the case, you must have the judge certify under MRCP 54(b) that there is no just reason to delay an appeal, and stating the reasons why. Otherwise, if you appeal, your appeal will be dismissed.

Easley v. Easley, COA June 5, 2012

When the parties enter into a consent for divorce and one of the contested issues who will be granted custody, the court may award the parties joint custody if the court deems it in the child’s best interest, regardless whether joint custody was listed as an option.

LePori v. Welch, COA June 26, 2012

There is no cause of action for termination of parental rights unless it is in contemplation of an adoption.

Rogers v. Rogers, COA July 24, 2012 and Dogan v. Dogan, COA October 9, 2012

If you are going to claim that the other party has perpetrated a fraud on the court as in Trim v. Trim, you have to plead fraud specially and prove all of its elements by clear and convincing evidence.

Marter v. Marter, COA August 7, 2012

Three acts that do not convert separate property to marital property for equitable distribution purposes: labor for plantation and maintenance; joint titling; and payment of property taxes.

Collins v. Collins, COA August 21, 2012

8.05 financial statements are the “gold standard” of proof as to assets and their values in a divorce, and the chancellor may rely on them solely in the absence of other evidence.

Strickland v. Strickland, COA August 28, 2012

Once the record has been transmitted to the MSSC in an appeal, the trial court has no jurisdiction whatsoever to reconsider, set aside, enforce or modify the order appealed from.

Brown v. Tate, 95 So.3d 745 (Miss. App. 2012)

The importance of entering an order of continuance on the return day in Rule 81 cases.

Ballard Realty, et al. v. Ohazurike, et al., MSSC September 6, 2012

A circuit court case in which the MSSC said that it was error for the trial judge to allow an expert to testify when the party offering him had not responded to the expert witness interrogatory seeking the substance of his testimony.

O’Briant v. O’Briant, COA October 16, 2012

Yet another case in which the appellate court points out that the Albright factors are not a scorecard in which winner takes all, but are a matrix for the court to use to assess the best interest of the child.

Jones v. Jones, COA November 13, 2012

When the chancellor has denied a divorce, she is under no duty to adjudicate custody pled as one of the prayers for relief in the divorce.

Estate of Holmes, COA November 29, 2012

The two subscribing witnesses to a will must be prepared to testify: (1) that they knew they were witnessing a will; (2) that the testator requested that they witness a will; and (3) that they did satisfy themselves that the testator was of sound and disposing mind when she executed the will.

Ford Motor Co. v. Ferrell, et al., MSSC December 6, 2012

Where the settlement that the chancellor is to approve is between private parties, the court should honor a party’s request to seal the record.

Sullivan and Stubbs v. Maddox, COA January 22, 2013

Attorney and his client jointly assessed with $43,000 in attorney’s fees and costs as a sanction where the proof showed that the lawyer had not investigated the merits of the claim before suit was filed, did not dismiss the case when discovery showed it was meritless, and then knowingly made false accusations against the judge on the record.

Gillespie v. Gillespie, COA January 29, 2013

Proof of grounds for divorce requires corroborating evidence, which is not necessarily strong enough in itself to prove the ground, but does tend to support the proof of the ground and a finding that it is true more likely than not.

Hollis v. Baker, COA February 12, 2013

If you fashion a hybrid alimony arrangement in a property settlement agreement or agreed judgment, and the court later finds it ambiguous, the ambiguity shall be resolved in favor of it being construed as periodic alimony, with all of the attendant attributes of periodic alimony.

Fore v. Fore, COA February 19, 2013

Both parties charged each other with post-separation adultery, and the chancellor denied both of them a divorce. Affirmed.

Caplinger v. Julian, COA February 12, 2013

Every judgment for child support must bear interest, set at a stated rate to be determined by the court pursuant to MCA 75-17-7.

Hall v. Lewis, COA February 12, 2013

Unmarried couple who lived together entered into mutual contract to provide for each other in their respective wills. Contract held not to be abrogated by the discontinuance of the relationship. Contracts for will are enforceable in Mississippi.

Forbes v. St. Martin, COA March 5, 2013

A must-read opinion on ethical aspects of contingent-fee contracts and the duties of out-of-state lawyers who participate in Mississippi litigation without applying to the court to appear pro hac vice.

Chancellor Ed Roberts of Oxford suffered stroke symptoms while on the bench last week. He at first insisted on finishing his docket, but finally relented and agreed to be taken to the ER at Baptist Hospital.

It was at the hospital that he learned that he has inoperable lung cancer and brain cancer. He is headed to MD Anderson Hospital in Houston.

I know he and his wife Sheila would appreciate your prayers. Judge Roberts’ brother, Larry, is a judge on the Court of Appeals. Both are natives of Meridian.

State Holiday.

Courthouse closed.

Judges’ Meeting.

Next post April 22, 2013.

Judges’ Meeting.

Next post April 22, 2013.

Judges’ Meeting.

Next post April 22, 2013.

[This little meditation appeared several years ago in, of all places, The Mississippi Lawyer magazine]

The Invitation

It doesn’t interest me what you do for a living.
I want to know what you ache for
and if you dare to dream of meeting your heart’s longing.

It doesn’t interest me how old you are.
I want to know if you will risk looking like a fool
for love
for your dream
for the adventure of being alive.

It doesn’t interest me what planets are squaring your moon…
I want to know if you have touched the centre of your own sorrow
if you have been opened by life’s betrayals
or have become shrivelled and closed
from fear of further pain.

I want to know if you can sit with pain
mine or your own
without moving to hide it
or fade it
or fix it.

I want to know if you can be with joy
mine or your own
if you can dance with wildness
and let the ecstasy fill you to the tips of your fingers and toes
without cautioning us
to be careful
to be realistic
to remember the limitations of being human.

It doesn’t interest me if the story you are telling me
is true.
I want to know if you can
disappoint another
to be true to yourself.
If you can bear the accusation of betrayal
and not betray your own soul.
If you can be faithless
and therefore trustworthy.

I want to know if you can see Beauty
even when it is not pretty
every day.
And if you can source your own life
from its presence.

I want to know if you can live with failure
yours and mine
and still stand at the edge of the lake
and shout to the silver of the full moon,
“Yes.”

It doesn’t interest me
to know where you live or how much money you have.
I want to know if you can get up
after the night of grief and despair
weary and bruised to the bone
and do what needs to be done
to feed the children.

It doesn’t interest me who you know
or how you came to be here.
I want to know if you will stand
in the centre of the fire
with me
and not shrink back.

It doesn’t interest me where or what or with whom
you have studied.
I want to know what sustains you
from the inside
when all else falls away.

I want to know if you can be alone
with yourself
and if you truly like the company you keep
in the empty moments.

© Mountaindreaming, from the book The Invitation published by Harper, San Francisco, 1999. All rights reserved

You should have received your Winter edition of The Mississippi Lawyer earlier this week, or maybe you will receive it today or tomorrow.

My initial reaction when I gazed at the photographs of the 14 prominent, accomplished women on the cover was “When will we be able to say, simply, ‘here are 14 notable colleagues in the law,’ and not have to draw gender distinctions?”

And then I opened the cover to see the Mississippi Valley Title advertisement that is the opening page inside. I’ll not spoil the delicious irony of that ad for you, but I think when you see it you will agree with me that it communicates quite eloquently why we are still at a stage where we need to focus on the contributions and abilities of women.

As for the magazine, the articles give an insight into the obstacles and hurdles that some of them had to overcome, but mostly, as I read, I was impressed with the fact that their stories are the stories of all Mississippi lawyers. They are stories of hard work, dedication, ideals, and service.

In my experience, in this corner of the state, women lawyers have been successful and have done a good job. The Twelfth District’s own Polly Covington of Quitman is one of the women highlighted in one of the articles. Congratulations, Polly. As the dean of Clarke County lawyers, and a battle-scarred veteran, I know you provide wise counsel and mentorship to other women in the profession in our area.

The other women who are featured are some of the best lawyers, judges, legal educators, and leaders in the state. I have been fortunate enough to know and work with a number of them. 

So, yes, it is still appropriate and desirable to praise the achievements of women in the law. Still, I wish we would get to the point where we’re all just lawyers.

Back again for your consternation and obsession: Wicked Mississippi Trivia.

The original Wicked Mississippi Trivia can be found here.

Answers to this quiz in a week or so.

1.  McKinley Morganfield and Chester Burnett are two world-renowned Mississippians. What were they famous for, and by what names did we know them?

2.  What was the name of US President James K. Polk’s plantation in what is now Grenada County?

3.  What and where was the second oldest military academy (after West Point) in the US, and the first educational institution in the Mississippi Territory?

4.  What now-nationwide organization was first established in 1909 in Crystal Springs?

5.  The first franchised Holiday Inn was located in which Mississippi city?

6.  Where does the “Southern cross the ‘Dog?” and what does that phrase mean?

7.  Casey Jones, a resident of Jackson, Tennessee, met his famous death in Vaughn, Mississippi. In what Mississippi town did he reside from 1893-1896?

8.  The adjoining towns of Pittsburgh and Tullahoma were consolidated on July 4, 1836, to form which Mississippi city?

9.  Jesse James robbed a bank in which Mississippi city?

10.  A traditional belief of the Choctaw people is that they first appeared on earth when they emerged from a cave near the “Mother Mound” in Mississippi. What is the mound called, and where is it?

11.  Avalon, a defunct village in Carroll County, is the home town of which famous Mississipian?

12.  When he raided CSA President Jefferson Davis’s Brierfield plantation near Vicksburg, Ulysses Grant stole – or “confiscated” – one of Davis’s horses that the Union commander used through the rest of the Civil War. What did the General name his stolen horse?

13.  Name the community founded in the Mississippi Delta in 1887 by descendants of Davis Bend, a utopian slave community established by Joseph Davis, older brother of Jefferson Davis.

14.  What was the original name of the site that became Jackson before it was known as LeFleur’s Bluff?

15.  Which Laurel native became an internationally acclaimed soprano with the New York Metropolitan Opera?

16.  Which of Mississippi’s yacht clubs has the distinction of being only the second to be established in the U.S.?

17.  Who is “The Sage of Tippo?”

18.  Ronald Reagan launched his 1980 campaign for President as the Republican party nominee at what Mississippi event?

19.  On May 26, 1736, a combined force of 1,200 French and Choctaws, under command of Bienville, was defeated by Chickasaw defenders in the Battle of Akia, in what present-day Mississippi county?

20.  The fictional Dr. Leonard “Bones” McCoy, chief medical officer of the Starship Enterprise in the original Star Trek series, had a Mississippi connection. What was it?

21.  Just before the Civil War, 92.5% of this Mississippi county’s total population were slaves–the highest concentration of slaves in the United States.

22.  What is the oldest newspaper published in Mississippi?

23.  At 86.5%, this Mississippi county has the highest percentage of African American population of any county in the United States. Which is it?

24.  What was the historic, now defunct, road that entered Mississippi from Alabama in what is now Lowndes County, crossed Noxubee, Kemper, Newton, Jasper, Jones, Marion, and Pearl River Counties before crossing into Louisiana at the Pearl River twenty miles west of Poplarville, Mississippi?

25.  Name the four official sites of the state capital through its history.

Bonus Question: What was the unusual object that fell from the sky in an 1887 hailstorm in Bovina?

As I have urged here many times, I encourage you to attend Professor Deborah Bell’s Family Law CLE each and every year. I push this particular seminar because it is by far the best, most complete and most insightful summary and analysis of the preceding year’s case devlopments in Mississippi domestic relations law. You will find yourself referring back to the materials from time to time, and I guarantee you will come away with more than a few nuggets that you will find useful in cases you try.

This year’s dates and locations:

• April 25, Jackson, Mississippi Sports Hall of Fame
• May 3, Oxford, Oxford Conference Center
• May 10, Biloxi, Imperial Palace

You can register online by clicking here.

While you’re at it, you should invest in Prof. Bell’s BELL ON MISSISSIPPI FAMILY LAW, 2d ED., which is the definitive reference work for Mississippi family law practtioners. If you are going up in court against colleagues who use this book and you don’t, you will be at a distinct disadvantage.

Disclaimer: I have no interest, financial or otherwise in the seminar or the book. My only interest is in a better-informed and more skilled bar.