Proof of the Valuation Date
February 26, 2014 § 1 Comment
I’ve whined here more times than I can count about how the record is almost always bereft of any testimony from either party in a divorce about what valuation date should be used by the court in assessing values. The date that the chancellor uses can take away or add thousands of dollars to your client’s slice of the marital pie, so it’s a subject that you should approach with some interest.
The valuation date (or demarcation date) is entirely within the discretion of the court, and if you do not put evidence in the record as to which date should be used and why, then you are leaving it strictly up to the chancellor to go with any reasonable date. One of several previous posts where I spelled this out is here.
If I were trying a case with valuations, I would always ask my client what valuation date should be used and why. And remember, that different assets can have different valuation dates. Why? Well, for one thing, it gives you something in the record to argue, as opposed to raising the argument in a vacuum on appeal with nothing in the record to support it. For another, it just might be all the chancellor needs to select the very date that your client designates. And, for yet another, if you don’t put that evidence under the judge’s nose, how in the world do you expect the judge to guess correctly what your client wants?
So how do you pick the best valuation date for your client? Look at how values are fluctuating, if they are, and pick the most advantageous date, then have your client explain to the court why and how that date will produce the most equitable result. If you want inspiration on how to do this, I suggest you study the various appeals where the court has upheld the chancellor’s arbitrary decision on valuation dating. How the chancellor picked a date is one indicator you can use. You can also draw inspiration from the after-the-fact arguments of counsel who left it up to the trial judge. The COA decision in McDevitt v. Smith, handed down November 26, 2013, is a recent example.
Which Post-Trial Motion You Choose Can Make all the Difference
February 25, 2014 § 3 Comments
James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.
On April 16, 2012, Loftin filed a public records request with the school district.
The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.
Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.
On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.
In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:
¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).
¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.
Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).
¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).
¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.
Comments:
-
A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
- A R60 motion does not stop the running of the appeal deadline.
- Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
- If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
- Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.
Family Law CLE: Save the Date
February 24, 2014 § 2 Comments
I am not in the business of promoting products or services, but I do promote the better practice of law. If you do any family law at all, you should make it your business every year to attend Professor Deborah Bell’s Family Law CLE program. I make time for it every year without fail, even though Professor Bell donates her time each Fall to make a presentation to the chancery judges.
Here’s a copy of the notice for this year’s programs:
| The 18th Annual Family Law CLE
Professor Deborah Bell, Seminar Leader This year’s Family Law CLE will be presented on the following dates and locations: Jackson · Friday, July 18, 2014 Oxford · Friday, July 25, 2014 Gulf Coast · Friday, August 1, 2014 _______________ Save the dates for this annual 6 hour CLE providing comprehensive overviews of the last year’s family law developments. Includes one hour of ethics credit. Register online at Family Law CLE Make check payable to: Carroll Chiles Moore, Conference Coordinator phone: 662-513-0159
REGISTER NOW, ONLINE! http://msfamilylaw.com/
|
While you’re at it, get yourself and use a copy of Professor Bell’s Bell on Mississippi Family Law. It’s the authoritative reference work for Mississippi family lawyers.
Rocky Springs
February 22, 2014 § 3 Comments
The community of Rocky Springs, in Claiborne County, grew up at the site of natural springs near the Natchez Trace where settlers had first set down roots in 1796. The springs attracted thirsty travelers on the heavily-used Trace.
In 1837, a Methodist church was built on the bluff overlooking the village.
By 1860, the population of Rocky Springs had grown. Within two and one-half miles of the village center were more than 2,600 people, which number included around 2,000 slaves. Farming occupied most of the community outside the immediate environs of the town. Fifty-eight planters worked the land with slave labor, primarily in cotton, which was the area’s principal economic engine. Within the village there were physicians, merchants, trades, clergy, and even an academy.
General Grant’s invading army in 1863 marched north from its river crossing near Bruinsburg and passed through Rocky Springs on its roundabout march to invest Vicksburg.
The village survived the economic devastation of the Civil War, but traffic on the Natchez Trace had dwindled as the area developed and the wilderness receded. In 1878 the population was slashed by a yellow fever epidemic.
By the 1900’s poor farming practices and severe erosion had crippled the cotton industry, and In the 1920’s the boll weevil infestation essentially ended it in the area.
In the 1930’s the springs dwindled and then dried up completely. The last store closed.
The only surviving structure of the once-thriving community is the Methodist church. It continued active until 2010, when its membership became too small to sustain it, but its doors are still open to visitors. On the chilly day that we dropped in we added our names to the register alongside others from New York, Germany, New Zealand, the UK, and many other places.
Behind the church is its cemetery. Tombstones date from the early-to-mid 1800’s to the present.
The National Park Service displays a painting purporting to depict what Rocky Springs looked like in its heyday.
The painting may be fanciful, or it may be an accurate depiction. I can’t say for certain. It does show the land cleared and cultivated, as we know it was, and the cluster of village buildings below the bluff commanded by the Methodist church. Still, it’s hard to square that idyllic portrait with the overgrown, heavily wooded, and deserted contemporary scene.
Today, Rocky Springs is nothing more than an historical stop on the Natchez Trace with an interpretive trail through its site. There is a nearby campground.
How Much Life Insurance is Enough? Or Too Much?
February 20, 2014 § 6 Comments
The chancellor ordered Bill Coggins to pay his ex, Alicia, $540 a month in periodic alimony. He also ordered Bill to make Alicia the beneficiary of $175,000 in life insurance on Bill’s life ” … to insure the payment of alimony in order to compensate [Alicia] and allow her to to survive …” if Bill should predecease her.
Bill appealed, complaining that the life insurance requirement was “excessive considering its purpose,” as in Johnson v. Pogue, 716 So.2d 1123, 1134 (¶41) (Miss.App. 1998).
In Coggins v. Coggins, decided Febarary 11, 2014, the COA agreed and reversed the chancellor’s ruling. Judge Maxwell wrote for the majority:
¶35. An alimony payor “may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” Bell, Mississippi Family Law § 9.08[4][c] (citing In re Estate of Hodges, 807 So. 2d 438, 442-44 (¶¶14-23) (Miss. 2002)). The key phrase is “alimony obligations that survive the payor’s death.” ¶36. Periodic alimony is an obligation that “terminates automatically” upon the payor’s death and cannot be imposed upon the payor’s estate, absent an express agreement. Armstrong, 618 So. 2d at 1281; see In re Hodges, 807 So. 2d at 443 (¶19). While lump-sum alimony fully vests at the time of the divorce judgment, periodic alimony only vests on the date each payment becomes due. In re Hodges, 807 So. 2d at 442 (¶17). So when the payor dies, the only alimony obligations that survive—and the only obligations that may be insured—are unpaid lump-sum alimony and unpaid periodic-alimony payments that have already vested.
¶37. Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life insurance policy to protect the recipient spouse against such a contingency. Pogue, 716 So. 2d at 1134 (¶41); see also Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005). But in Pogue, this court found that requiring the payor to maintain a $75,000 life insurance policy to protect against the potential failure to make $500-per-month alimony payments was “excessive.” Pogue, 716 So. 2d at 1134 (¶41).
¶38. How much more excessive then is the requirement that Bill designate Alicia as the beneficiary to $175,000 in life-insurance proceeds to protect against Bill defaulting on his $504-per-month alimony payments and then dying before curing the default. This amount of insurance—the equivalent of thirty years worth of alimony payments—assumes not only that Bill may fall behind for three decades but also that Alicia will experience no material change of circumstances altering or terminating her need for alimony. Such an amount is unreasonable. Even when we factor in the unpaid portion of the $25,000 hybrid property settlement/lump-sum alimony obligation that has vested to Alicia, we find requiring Bill designate Alicia receive seven times that amount upon his death is still excessive.
¶39. We remand for the chancellor to consider whether requiring Bill to designate Alicia as a beneficiary is necessary to protect against the alimony obligations that may survive Bill’s death. If the chancellor determines the designation is necessary, he should require Bill to designate Alicia as beneficiary to a portion commensurate to those potential obligations.
There must be proportionality between the amount of alimony reasonably expected to come due and the amount of life insurance to protect that amount. The only guide we have from the case law, however, is that for $500 monthly alimony $75,000 is too much, and $175,000 is ‘way too much.
Do you always include a prayer in your divorce pleadings for life insurance to secure child support, alimony, and other obligations? And do you have your client and possibly other witnesses testify about the need for it? If you don’t do either or both, you should start.
And don’t overlook marshalling some proof about what the cost of the life insurance will be. I have denied that prayer for relief because I had no idea from the evidence in the record what the premiums would cost the paying party.
Enforcing the Temporary Order
February 19, 2014 § Leave a comment
Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?
It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”
So … what are you going to do about it?
In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:
¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).
You have several ways to approach enforcement of temporary orders:
- You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
- With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
- Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.
The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.
As a Muniment of Title Only
February 18, 2014 § 3 Comments
A lawyer emailed me last week with a quandary. She had prepared a judgment to admit a will to probate as a muniment of title. Before she finalized it, she checked this blog and read with confusion my post on the subject that cautioned against including language adjudicating heirship or ownership. She said that her firm usually included such language in their judgments. And she asked a most apt question: If you’re not going to adjudicate ownership, what’s the point?
Let’s look at the statute first:
SEC. 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.
(1) When a person dies testate owning at the time of death real property in the state of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:
(a) The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and
(b) All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.
(2) If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.
(3) The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.
(4) This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.
Note that the very language of the statute says that ” … said will may be admitted to probate, as a muniment of title only …” The limiting word “only” means that it may be admitted for that sole purpose and for no other purpose. A muniment is documentary evidence. To recast the statute in plain language, then:
The will may be admitted for the sole purpose of serving as documentary evidence of title.
The statute does not contemplate that the will is admitted to adjudicate heirship, or ownership, or anything else. When the judge signs the judgment admitting the will to probate as a muniment of title, that judgment tells people searching the land records that he or she can rely on the will as documentary evidence of title, even though there has been no further, formal administration of the estate.
Subsection (3) underscores the function of the statute. It says that the rights of anyone desiring to contest the will are not affected.
When the will is admitted to probate under this section, it provides evidence of ownership, but not conclusive evidence, because it does not operate to extinguish claims: (1) of any person that the will was fraudulent or made with lack of capacity or the product of undue influence; (2) of illegitimates who could attack the validity of the will; or (3) of creditors who claim that they were not paid.
So, if you’re not going to adjudicate ownership or even heirship, what is the point? Why bother with this procedure? Well, it gives persons who want a complete chain of title, and who don’t have the money or the time for a full administration, a shorthand way to add this particular link to that chain. And, keep in mind that it only applies in certain, limited situations. If the estate doesn’t fit, full administration is the way to go.
Now, what about the inquirer’s concern that her firm has been presenting judgments with adjudications included? I told her if her chancellor will do that, go ahead and include it, but my sense of the consensus among chancellors is that most will not adjudicate anything other than admission of the will as a muniment of title only. If you’re in doubt, pop into your chancellor’s office and ask. Most chancellors will be happy to chat with you about it. Keep subsection (3) in mind, though. That adjudicatory language you included won’t be the final word in any contest.
In this district, we will not sign a judgment that does anything other than admit the will to probate as a muniment of title. That’s how we understand the statute.
What is the practice in your district?
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