Involuntary Partition by Spouses for Homestead Property
January 7, 2014 § 2 Comments
Mississippi law provides, essentially, two avenues by which parties who share joint interests in real property may effect a partition of their interests: (1) the property interests may be divided by decree of a chancery court per MCA 11-21-3; or (2) the parties may reach a signed agreement, per MCA 11-21-1.
In 2009, the Mississippi legislature amended MCA 11-21-1, the voluntary agreement provision, to add the following language:
(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.
I think most practitioners read that language to mean that, unless the spouses agreed, there could be no partition of homestead property by partition action between them. Whether that interpretation is correct was the subject of a recent MSSC decision.
Elise Noone filed a complaint for divorce charging her husband, Frank, with habitual cruel and inhuman treatment. The chancellor denied the divorce in 2011. The parties were joint tenants with right of survivorship in some 67 acres of land in Copiah County, upon which they claimed homstead. Since the divorce was denied, the property remained in joint ownership.
Elise then filed an action for declaratory judgment to determine whether the chancellor had the power to partition the property, or, at least, to the extent that the value of the property exceeded the $75,000 maximum amount of the homestead exemption, and, if so, asking the court to make a partition of the property. She then filed a motion for summary judgment arguing that the language “exempted from execution” in MCA 11-21-1(2) limited application of the statute to the value of the property exempt from execution only. Frank countered that the language is not limiting, but intends that any homsetead property can be subject to partition only by agreement, and not otherwise.
The chancellor agreed with Frank, and Elise appealed.
The MSSC handed down its decision on December 12, 2013, in Noone v. Noone, Justice Coleman writing, for a unanimous court, explained:
¶7. Elise maintains that, by using the phrase “homestead property exempted from execution,” the Legislature meant specifically to incorporate Section 85-3-21, the homestead exemption statute. Section 85-3-21 allows one to hold up to $75,000 worth of his or her homestead property exempt from execution by creditors. Miss. Code Ann. § 85-3-21 (Rev. 2011). Creditors can access the value of homestead exempted property that exceeds $75,000. Id. Elise’s primary argument is that Section 11-21-1(2) applies only to the extent that the property is actually exempt from execution. In other words, she contends that the law applies the same way to spouses seeking to partition land by decree as to creditors – the law creates a limit on homestead property exempt from execution, and that limit is applicable in all situations where homestead property is invoked. If she were correct, because the Noones’ property is valued at more than $600,000, Elise would still be able to partition the large majority of the property.
¶8. The issue, in the narrowest sense, is the interpretation of the phrase “homestead property exempted from execution.” Miss. Code Ann. § 11-21-1(2) (Supp. 2013). When the meaning of a statute is plain and unambiguous, “the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction.” City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992) (citations omitted). The potential meanings of “homestead property exempted from execution” are two: (1) the phrase could mean that the entire homestead property is under the ambit of Section 11-21-1, and therefore partition must be by written agreement of the owners; or (2) the phrase could mean that Section 11-21-1 applies only to the $75,000 that is exempt from execution by creditors under Section 85-3-21.
¶9. If the interpretation of that phrase were a true matter of first impression for the Court, then the latter reading might be plausible. However, in similar contexts, the Court has restricted the meaning of “homestead property exempted from execution” to the former. See Hendry v. Hendry, 300 So. 2d 147, 148 (Miss. 1974) (“Homestead value is relevant only in considering the claims of creditors in relation to the homestead upon which exemption is claimed.”); accord Stockett v. Stockett, 337 So. 2d 1237, 1240 (Miss. 1976). Hendry and Stockett have foreclosed any ambiguity. Therefore, in the instant case, the Court is tasked with nothing more than applying the logic underlying Hendry and Stockett.
¶10. In Hendry v. Hendry, a husband sold homestead property without obtaining his wife’s approval. Hendry, 300 So. 2d at 148. Pursuant to Mississippi Code Section 89-1-29 (Rev. 2011), a conveyance so made cannot be upheld. Section 89-1-29 provides, generally, that a conveyance of a “homestead exempted from execution” is not valid or binding unless signed by the owner’s spouse. Id. The Hendry Court held the value limitation on homestead property relevant only to creditors. Hendry, 300 So. 2d at 149. Therefore, the law voided the entire conveyance – not just the portion subject to exemption from creditors. Id.
¶11. The Stockett Court discussed the issue even more explicitly. Stockett, 337 So. 2d at 1239-41. In Stockett, the decedent left all of his property equally to his wife and son. Id. at 1238. The son tried to partition the homestead property of the widow (formerly owned by the decedent) but was denied because of Mississippi Code Section 91-1-23, which limits a devisee’s right to partition a decedent’s “exempt property” occupied by the widow of the deceased. Id. The decedent’s son argued that Section 91-1-23 protected the property only to the extent the value equaled the amount exempt from execution. Stockett, 337 So. 2d at 1239. The Court disagreed, holding that the limit found in Section 85-3-21 protects creditors, while Section 91-1-23 protects widows. Id. at 1240-41; see Miss. Code Ann. §91-1-23 (Rev. 2013). The Stockett Court wrote:
We have not varied in this interpretation of these statutes since 1905 when we said, in Moody v. Moody, 86 Miss. 323, 38 So. 322[, 323 (1905)]: “The limit of value placed by law on the amount of land which can be held as exempt is solely for the protection and benefit of creditors-to prevent unreasonable amounts from being held exempt from execution to the prejudice of those to whom just debts might be due. But the question of value has no place in a consideration of the rights of the surviving widow to the use and occupancy of the homestead. . . .”
Stockett, 337 So. 2d at 1240.
¶12. Both Section 91-1-23 and Section 11-21-1 invoke the exemption from creditors found in Section 85-3-21. However, the reasoning employed by the Stockett Court applies to the case sub judice. Just as Section 91-1-23 protects widows from involuntary partition, Section 11-21-1 protects spouses from involuntary partition. Neither statute protects creditors. The phrase “homestead property exempt from execution” serves as a descriptive phrase identifying the property that one (or, in the instant case, a married couple) inhabits. As shown above, we repeatedly have held that the Legislature’s decision to use the phrase “homestead property exempt from execution” in other statutes identifies the specific type of property that the Legislature wants to protect. The phrase is not, as Elise argues, intended to bring the specific limitations on creditors’ rights to other, unrelated statutes.
That’s a pretty definitive decision. The statute is to be read as protective of spouses, and any interpretation that conflicts with that intent will be rejected.
The Valuation Date as a Moving Target
January 6, 2014 § 3 Comments
The valuation date for equitable distribution is important to establish, as we have discussed before, here and here, among others. Asset values can fluctuate, significantly affecting the landscape of equitable division.
We’ve also discussed the MSSC holding that the date of the temporary judgement does not necessarily impose a demarcation date for valuation. That date is left to the sound discretion of the chancellor based on the evidence in the record.
The two principles arose together in the COA case of Stout v. Stout, decided December 10, 2013. In that case, Henry and Tracey Stout were before the chancellor on a consent, leaving equitable distribution for the judge’s adjudication. A temporary order had been entered in 2009, and the divorce trial was not held until 2012. In 2009, the marital home’s value was around $30,000 more than its value at the time of the final hearing. The chancellor elected to use the 2012 value, which caused Tracey to receive a smaller share of assets, resulting in an award of alimony.
Henry appealed, complaining that it was error for the chancellor to use the trial-date value as opposed to the temporary-order-date value. He also argued that it was error for the chancellor to use different valuation dates for different assets. Judge Roberts wrote for the majority:
¶15. First, Henry claims that the chancellor improperly valued the marital home at its 2012 value as opposed to its value in 2009 when the temporary order was entered. He claims that due to the incorrect valuation, Tracey received a lower value of assets making it more likely that alimony would be necessary. Two appraisals were done on the home: the 2009 appraisal valued the home at $132,000; the 2012 appraisal valued the home at $105,000. The chancellor used the latter value when assessing the home’s value to Tracey. Henry admits that the chancellor had the discretion to set the dates for valuation of assets, and he cites to no other authority for his proposition that the chancellor is required to use the same date for valuation of all property. In using the 2012 value, the chancellor specifically noted that the house had significantly depreciated, that Tracey had been responsible for the mortgage payments since the separation, and that Henry had abandoned the house. The supreme court has stated that “the chancellor enjoys broad discretion to value property as of any date that, in the chancellor’s view, equity and justice may require.” In re Dissolution of Marriage of Wood, 35 So. 3d 507, 516 (¶20) (Miss. 2010). We can find no case law that a chancellor must use the same date when valuing all the property. Therefore, this issue is without merit.
A few observations:
- As important as the valuation date is in an equitable distribution case, I reiterate that I seldom hear any proof as to what date a party wants me to impose, and why. It can make all the difference in the world to your client, yet, if you do not put anything in the record to support a finding favorable to your client, you are leaving it up to the judge’s unfettered discretion. I am not saying that is what happened in this case; we don’t have enough information to tell.
- It was enlightening to read that the COA could find no authority for one, global valuation date. I have never been able to divine an answer from the case law on the point either. In most cases, I am presented with valuation dates all over the ballpark. An example might be: a real property appraisal of the marital residence from 2012; IRA statements from June, 2013; personal property appraisal 3 months before the November, 2013 trial; securities account statements dated December, 2012. In a case like that, it seems that the judge has no choice but to use the best information available for the dates provided, unless the judge orders the lawyers and parties to go back to the drawing board, so to speak, to gather some more current info as of a given date.
- The most grateful clients are the ones whom you save lots of money. The clients who come to hate you are the ones you cost a lot of money. Valuation of the assets, and making the case for a valuation date favorable to your client’s best interests, are sure-fire ways to save — or make — a lot of money.
“Quote Unquote”
January 3, 2014 § 1 Comment
Voices lost forever in 2013 …
“A man who takes away another man’s freedom is a prisoner of hatred, he is locked behind the bars of prejudice and narrow-mindedness. I am not truly free if I am taking away someone else’s freedom, just as surely as I am not free when my freedom is taken from me. The oppressed and the oppressor alike are robbed of their humanity.” — Nelson Mandela
“In university they don’t tell you that the greater part of the law is learning to tolerate fools.” — Doris Lessing
“We shall have to learn again to be one nation, or one day we shall be no nation.” — Margaret Thatcher
“It always bothers me to see people writing ‘RIP’ when a person dies. It just feels so insincere and like a cop-out. To me, ‘RIP’ is the microwave dinner of posthumous honors.” — Lou Reed
“I believe empathy is the most essential quality of civilization.” — Roger Ebert
“History says don’t hope
On this side of the grave.
But then, once in a lifetime
The longed for tidal wave
Of justice can rise up
And hope and history rhyme.” — Seamus Heaney
“Mr. Jesus died for the bigots as well.” — Rev. Will Campbell
“I couldn’t wait for success, so I went ahead without it.” — Jonathan Winters
“We control fifty percent of a relationship. We influence one hundred percent of it.” — Dr. Joyce Brothers
A Due Process Wrinkle for Child Support
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
Temporary Setbacks, Part II
December 31, 2013 § 1 Comment
Yesterday we visited the subject of temporary hearings in cases where ID is the sole ground. The practice across the state is, well, varied.
What about the manner in which temporaries are conducted?
In this district, we schedule all temporary hearings on a R81 return day. Many are negotiated to a settlement. The ones that do no settle are taken up for hearing in order from oldest filed to most recently filed. Each side is allowed one hour, total, for the presentation of all witnesses and other evidence. One hour is by consensus among bench and bar an adequate time to develop the pertinent proof. We had a chancellor once who limited proof to ten minutes per side, which produced a lot of groaning among the lawyers. I set an expiration date of six months on my orders in hope of promoting movement toward finality.
In other districts, I experienced a broad range of ways to approach temporary matters. In some districts, a temporary hearing can consume an entire day. I often wondered in those cases what the difference was between that ordeal and the final hearing. I also wondered where the chancellor found the time.
In many districts, the proof is limited:
- One chancellor, now retired, would call the parties and attorneys to the bench, where all stood in reverent silence while the judge examined the parties’ 8.05’s. He seldom had any questions. He would simply say something like, “Okay, the wife will have custody and the husband will pay $250 a month child support. Next case.”
- Another judge called the parties to the bench and based his temporary order on a colloquy with the clients with limited input from the attorneys.
- In one district the judge allowed only the parties to take the stand. He would interrupt and ask his own questions until he was satisfied that he had a clear picture, then would say he had heard enough, and would direct one of the attorneys to draft an order.
Your experiences, I am sure, will vary. I would welcome your comments about how temporary hearings are handled in your area.
Temporary Setbacks, Part I
December 30, 2013 § 4 Comments
A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:
I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.
Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.
The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”
As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.
I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:
- “No.”
- “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
- “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
- “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
- “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
- “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
- “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
- “No. Never. No justiciable issue.”
That’s about 20% of the chancellors.
If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.
Contending with Contempt
December 19, 2013 § 1 Comment
The ins and outs of contempt can get pretty confusing. There is civil contempt and there is criminal contempt, and there is direct criminal contempt, and there is constructive criminal contempt. There are different burdens of proof, and there are different due process requirements. In the heat of battle, it can be confusing.
The MSSC decision in Judicial Performance Commission v. Harris, handed down December 5, 2013, offers an opportunity to review the forms and requirements of contempt.
A previous post dealing with the subject is at this link.
Here it is in a nutshell:
- Civil contempt enforces the right of a private party to enforcement of a previous court judgment in his or her favor. It is triable in seven days via R81 summons. The burden of proof is by a preponderance of the evidence (although some cases say it is by clear and convincing evidence).
- Criminal contempt enforces the authority of the court. There are two categores: direct and constructive. The burden of proof is beyond a reasonable doubt.
- Direct criminal contempt occurs in the presense of or within the sensory perception of the judge, and is punished instantly by the offended judge.
- Constructive criminal contempt occurs outside the presence or sensory perception of the offended judge. It requires notice, an opportunity to defend, and other due process considerations, including the possibility of hearing before another judge.
The MSSC decision in In re Williamson, 838 So.2d 226, 228 (Miss. 2002), includes a helpful discussion.
As a judge I find some of these categories somewhat fluid. For example, when a party files a blatantly false and fraudulent document with the court, assuming the act is contemptuous, is it direct because it is presented to the judge as a pleading or evidence, or is it constructive because the act of filing took place outside the presence of the judge? Or, where a party in the course of testimony or in a pleading volunteers that he has done a clearly contemptuous act, is that direct or constructive? In my experience, it’s not always crystal clear when one is called upon to make the right decision.
As a lawyer, these distinctions may make a big difference to your client, whichever side you find yourself on. If all you’re seeking is to force compliance with a child support or alimony order, civil contempt is all you really need. If you try to get fancy and ask for criminal sanctions, you are propelling the case in a whole different direction with heightened burden of proof and more stringent due process requirements. If you are representing the alleged contemnor, you will want to be sure he or she is afforded all of the due process protection that applies. You might even want to argue for all due process protection in a direct criminal case simply because it would possibly allow the judge to cool down and the memory of your client’s reprehensible conduct to fade somewhat.
The Better Chancery Practice Blog 