Semper Pactiones Quod Non
June 16, 2015 § Leave a comment
If the title of this post is not a legitimate Latin legal maxim, it should be, because it captures the essence of an important principle of extra-judicial modification. The above can be translated as “You don’t always get what you bargained for.”
That most certainly was true in the case of Patrick and Lesa Deckard, who were divorced from each other in 2003. The divorce judgment required Patrick to pay Lesa $1,200 per month as support for their two children.
Soon after the divorce one of the children went to live with the paternal grandparents. Patrick contended that he and Lesa agreed between them that the child support would be reduced to $800 a month, and then later to $600 a month. Yet another, later, agreement had Patrick paying child support of $700 a month, the amount of private school tuition. Lesa took the position that Patrick dictated what he would pay by claiming it was all he could afford; she pointed out also that Patrick never paid the amounts in question, anyway. Patrick did not produce any evidence of any extra-judicial agreements.
The chancellor found Patrick in contempt and awarded Lesa judgments totaling around $114,000 for unpaid child support, unpaid medical expenses of the children, and attorney’s fees. The judge also ordered Patrick to pay $800 in child support from that point on. Patrick appealed.
In the case of Deckard v. Deckard, decided June 2, 2015, the COA affirmed, Judge Ishee’s opinion laid out the rationale:
¶6. In the judgment of divorce issued by the chancery court on December 18, 2003, Patrick was ordered to pay child support in the amount of $1,200 per month. In the order dated March 6, 2014, Patrick was found to be in contempt for his failure to pay $107,013 in child support from 2005–2014. Patrick argues that the amount claimed is too high because their oldest son, Taylor, moved in with his paternal grandparents soon after the divorce.
¶7. Patrick asserts that allowing Lesa to collect child support from Patrick for Taylor’s benefit would be unjust enrichment because “for all practical intents and purposes he had never been in Lesa Deckard’s home and she never expended any monies for child support for his use and benefit.” However, the chancellor disagreed and found that Patrick owed the amount ordered by the original agreement to Lesa in unpaid child support. In doing so, the chancellor quoted the following from Smith v. Smith, 20 So. 3d 670, 674 (¶¶13-14) (Miss. 2009) (citations omitted):
The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made. The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.
. . . .
In a contempt action concerning past-due child support, when the custodial parent introduces evidence that the noncustodial parent who is required to pay the support has failed to do so, a prima facie case of contempt has been made. At this point, the burden falls on the defending party, to avoid a finding of contempt, to prove that there was payment or other defense, and this proof must be “clear and convincing and rise above a state of doubtfulness.”
¶8. The chancellor found that while Taylor was living with Patrick’s parents, Patrick did not contribute any money or financial assistance in any manner to his parents for Taylor’s benefit. Accordingly, the chancellor found that there was not any evidence before the court that would allow Patrick to receive a credit for any child-support payments.
¶9. Although Patrick cites the case of Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014), to support his position, the facts in this case are distinguishable from the facts in Brewer. In Brewer, the Mississippi Supreme Court reversed the chancellor’s finding that a man was not entitled to a credit for the amount of child support he had paid to his ex-wife for the period of time in which their son did not live with her. Brewer, 135 So. 3d at 121 (¶16). However, the chancellor only agreed to the credit because the son had been living with his father while his father was still paying the mother child support for him. Id.
¶10. In the instant case, Taylor was living with Patrick’s parents, and Patrick admits that there is no evidence that he contributed any money to his parents for Taylor’s expenses. “Whether or not a non-custodial parent should be given credit against his/her child support obligation[] is a matter left to the sound discretion of the chancellor.” Strack v. Sticklin, 959 So. 2d 1, 5 (¶14) (Miss. Ct. App. 2006). As such, we agree with the chancery court that Patrick is in contempt for his failure to pay $107,013 in child support.
Oh, and Patrick overlooked the fact that when child support is global (i.e., one amount for all children, as opposed to a specified amount per child), the fact that one child is no longer entitled to support (e.g., due to emancipation), it does not necessarily result in a reduction in the total amount of child support.
And on the issue of the enforceability of the extra-judicial agreements, the COA first pointed out that the evidence was in dispute as to whether there were ever any such agreements, and then made this observation:
¶13. “No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity.” Crow v. Crow, 622 So.2d 1226, 1231 (Miss. 1993) (citation omitted). “A party making an extra-judicial modification does so at his own peril.” Id. (citation omitted). Because there is no evidence of an extrajudicial agreement, we affirm the chancery court’s findings that Patrick is in contempt for $107,013 for unpaid child support.
An especially good lawyer will sit down with her client in the aftermath of a divorce, or custody, or child-support case and carefully explain that people quite often will try to reach all kinds of handshake agreements later — whether out of a desire to avoid more bloodshed and hard feelings, or to avoid the pain of more attorney’s fees, or from exhaustion — and those kinds of agreement are fraught with peril. Better to get some legal advice and a court order before changing what the court ordered.
Happy Birthday to BCPB
June 15, 2015 § 14 Comments
Sunday marked the fifth anniversary of this blog.
The birthday party was pretty wild, with cake, ice cream, punch, bubbly, clowns (always lurking around here), bouncy house, slip-n-slide, and a few sets by St. Paul & the Broken Bones. The crowd didn’t finally disperse until police broke it up around 2 am.
Not really. It was an ordinary dull (hot) Sunday around my house.
So, what is the sum of these past 5 years vis a vis this blog?
- This is the 1,411th post. I wondered when I started this whether I would still have anything to say after a few months.
- There have been 2,944 comments. Thank you, thank you, thank you. I wanted from the start to generate some comments and helpful observations.
- There are now 480 followers by email. That’s a lot, as far as I am concerned, and I think there are many other readers who don’t follow via email.
- I hear from all areas of the state from lawyers, and even judges, who have used this as a resource.
The fundamental goal when I set out was to begin compiling material to which legal professionals could come to find answers to basic questions, practice tips, and ideas to improve representation of clients. I think I’ve been successful to a degree.
I’ve always saved major changes and new directions for anniversary dates, and this year will be no exception. On past anniversaries, I changed the name of the blog, changed its focus, and revamped its appearance.
I’ve also always used the anniversary as a re-commitment for another year.
So here’s what’s coming this time:
- I’m going to follow the lead of the saner bloggers who went before me and relax my regimen of a post a day, M-F, a pace that can get somewhat hairy at times with all of one’s other demands. So you might see anywhere from one to five posts in a given week, and, occasionally, none. I encourage to you to “follow” the blog via email by clicking on the window and entering your email address on the computer version; that way, you’ll get notice via email when there is something to read.
- All of the archived content will remain in place. Change in frequency of posts won’t affect that.
That’s all for now. I will continue into the foreseeable future. I hope this continues to be a useful resource.
The Courthouses of Mississippi
June 12, 2015 § 1 Comment
Lowndes – Josh Clemons
Benton (Historical) – Beverly Kraft
Benton – Beverly Kraft
Chickasaw at Houston – Grant Fox
Chickasaw at Okolona – Beverly Kraft
Leake – Richard Young
Wayne – Kathy Wilkinson
Monroe Chancery – Craig Brasfield
Ittawamba – Beverly Kraft
Carroll at Vaiden – Maggie Ferguson
A Procedural Peculiarity
June 11, 2015 § Leave a comment
We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.
It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.
Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.
Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.
In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.
In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.
Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.
The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.
In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.
This was unquestionably the right conclusion as to issue (1).
As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.
With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:
- You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
- Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
- The chancery court’s order quieting and confirming disposed of any adverse possession claims.
- This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.
In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.
Pro Se Times Five
June 9, 2015 § 5 Comments
Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.
I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.
You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.
Brain surgery requires a high degree of education, smarts, and practice. As does the law.
Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity — insist on representing themselves in litigation and — horrors — on appeal?
That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:
¶5. After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.
Pro se, I might add.
Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:
¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).
¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.
Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.
Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.
I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.
Rule 5.1 Suspended
June 8, 2015 § 2 Comments
The MSSC suspended operation of MRCP 5.1 last Thursday. Here’s the text of the order:
This matter is before the en bane Court on the Court’s own motion.
On April 28, 2015, we entered an order amending the Mississippi Rules of Civil Procedure to add Rule 5 .1. The amendment became effective that same date.
After due consideration, however, we find that the April 28 order should be vacated and that Rule 5 .1 should be suspended until further order from this Court. We further find that Rule 5.1 should be struck from the rules published on the Court’s website and omitted
from the next edition of the Mississippi Rules of Court
IT IS THEREFORE ORDERED that the April 28 order adopting Rule 5 .1 is vacated, and Rule 5 .1 is suspended until further order from this Court. Rule 5 .1 shall also be struck from the rules published on the Court’s website and omitted from the next edition of the
Mississippi Rules of Court.
SO ORDERED, this the 4th day of June, 2015.
That should alleviate for now some of the anxiety among chancellors and lawyers who have been scratching their heads over how to implement the new rule in cases involving child support, custody, and myriad other types of cases involving children in counties still using paper filings.
Remember, however, that confidentiality requirements similar to 5.1 are still in effect in MEC jurisdictions.
“Quote Unquote”
June 5, 2015 § Leave a comment
“There is no true justice unless mercy is part of it.” — The Zohar
“We need to forgive and be forgiven every day, every hour increasingly. That is the great work of love among the fellowship of the weak that is the human family.” — Henri J.M. Nouwen
“If we had no faults of our own, we should not take so much pleasure in noticing those in others and judging their lives as either black or white, good or bad. We live all our lives in shades of gray.” — Shannon L. Alder
Tacking Adverse Possession
June 4, 2015 § 3 Comments
The case of Rester and Davis v. Greenleaf Resources, Inc., handed down by the COA April 7, 2015, is instructive for an aspect of adverse possession that can be overlooked.
In that case, the chancellor had ruled that Sylvia Rester and L.B. Davis had failed to meet their burden to prove the elements of adverse possession of some 19.5 acres of land by clear and convincing evidence. The COA held that the chancellor did correctly apply the law to the facts of the case, but erred by considering only the period of time when the property was owned by Greenleaf. The COA opinion, by Judge Irving, states:
¶16. After reviewing the record, we find that the trial court correctly considered the elements of adverse possession; however, it erred because it only focused on the period of time Greenleaf held title to the land. Specifically, the trial court erred when it held that “Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out that Greenleaf did not hold title to the land until 2004, when it purchased the land from the Crosbys. Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.
¶17. There are several ten-year spans of time, an element of adverse possession, that need to be considered, which the trial court’s findings are silent on. Such a span begins with L.B.’s birth on the disputed property. There is testimony that the family maintained control by renting out the log cabin in their absence for a period of time. In addition, there was testimony that L.B. had worked on the fence in 1939. There is uncontradicted testimony from Herbert, who managed the property for over twenty years, that the property was on a squatters list, and that there were painted lines that were not crossed. In addition, he recalled that there was a fence, and that crops had been planted on the disputed property. Herbert’s testimony is corroborated by L.B.’s testimony. James also testified to seeing the painted lines, which Herbert described and stated he did not cross in light of the fact that the land was on the squatters list. Several other witnesses testified about crops being grown by the Davises on the disputed property and the Davises’ recreational use of the land.
¶18. We find that there was sufficient evidence produced to warrant further inquiry for the period of time prior to Greenleaf’s purchase of the disputed land. If at any point, the Davises had adversely possessed the property prior to Greenleaf’s purchase, it follows that the title that Greenleaf received could not include the disputed property, notwithstanding the fact that it may lie within the calls of its deed. To be clear, nothing in this opinion should be interpreted as holding or finding that the evidence is sufficient or insufficient to show that the Davises adversely possessed the property prior to the point in time when Greenleaf purchased it. We simply hold that the trial court erred in limiting its focus to the period of time after the date of Greenleaf’s purchase.
This holding is dictated by MCA 15-1-13(1), which sets out the period of adverse possession, and reads, in part:
Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title …
In other words: (A) any person or persons in the preceding chain of title who achieved adverse possession passes good title to the subsequent title holders; and (B) where there is privity between a party and his predecessor in title, the party is entitled to “tack” his possession to his predecessor’s so as to have ten years’ possession, despite the fact that the party has not himself been in possession ten years. Ricketts v. Simmons, 44 So.2d 537, 538 (Miss. 1950). Either situation requires the court to look at the facts of the predecessors in title, which means that it is incumbent on counsel to develop that proof at trial as was done in the trial of the Rester case. If you don’t put it in the record, the court can not consider it, and you can not prevail on appeal.
A Heartfelt Plea
June 3, 2015 § 10 Comments
I don’t usually share my personal correspondence with others, but since most of you are regular readers, I felt that it would be of some benefit to you to read this emotional email I received last week:
Dear Beloved
I write to you in good faith and hoping that you will understand the importance of my email. My decision to contact you is because I have been recently diagnosed with Cancer and the doctor said I have less than 6 weeks to live.
Since this sudden news was announced to me, I have been reflecting over my life in the past. It is painful that after over 24 years of peaceful marriage with my late husband, we had no child of our own that will inherit our numerous wealth. In the past, I have made reasonable donations to the victims of Earthquake in Haiti and recently to the same victims in Japan and Thailand. Now that my health is gradually deteriorating, I cannot continue to do all these by myself any more.
Because I have no relation, me and my husband grow up as orphans in Orphanage homes that is why I am making everything possible to make sure half of my funds go to Orphanage homes hence I can no more handle this Charity I please that you should complete this program once you receive the Funds which was deposited in Freedom Security Bank, take half of the total funds for yourself and use the half for charity and also build Charity Foundation.
I strongly desire to reach out to the poor and needy people, but I would prefer to continue this with the assistance of a kind person. I want you to answer the following questions, (1) If I donate (32.5) Thirty Tow Million five Hundred Thousand United States Dollars to you, which is all I have in this world can you be able to utilize it wisely to achieve my heart desire of supporting poor people around you? (3)Will you open a charity foundation in the name of Me and my late husband and Please reply me as soon as possible.
If you are ready get back to me with the below details.
1 your full name
2 your country name
3 your Telephone number
4 your Present Occupation
Yours Faithfully.
Mrs Ann Williams
Doesn’t that just tear at your heart?
Now, I don’t have anything against orphanages or Orphanage homes or trusts or rich people who can’t figure out how to spend their millions, but I think I’ll pass on Ms. Williams’s proposition for several reasons.
For one thing, I do not know Ms. Williams. For another, anyone who addresses me as “beloved” at one end of her correspondence and then has to ask my “full name,” country name, and occupation … well, that just kind of confuses my emotions. Her incoherent rambling does not reassure me. Oh, and this is transparently and patently a scam.
I get one or two emails like this every month. I am sure you do as well. I always think to myself “Who would be crazy enough to fall for something like this?” and then I remember that a wealthy Meridianite some years ago lost nearly $50,000 in a similar scam. He was a prominent businessman who should have known better — and didn’t need the money that was dangled before his nose — and just got greedy at the idea of money for nothing.
So, “dear beloved” readers, I encourage you to trash these easy-money emails before you, too, get burned.
