The Thing About Judges …
November 7, 2013 § 5 Comments
Phillip Thomas has an excellent post on his blog about judges and how they are perceived by lawyers who come before them. Although it is framed in the context of the epic Eaton v. Frisby litigation, there is truth there for every lawyer who ever has to deal with a judge, which would be an overwhelming percentage, I am sure.
Most often, in my experience, lawyers view judges based on memorable experiences, good or bad, and not on the judge’s total body of work. For instance, the judge who yells at you for wasting an afternoon on a meaningless motion is perceived quite differently from the judge who kindly calls you into chambers and points out that, in the future, you should not waste everyone’s time. Those are what sticks in the mind, not the whole history of mundane, routine matters that the judge handles by the dozens day by day.
As Mr. Thomas points out, some lawyers become dark conspiracy theorists about judges. They see a personal animus in every adverse ruling. They attribute bad results to the judge’s dislike for where the lawyer or client came from, or the color of suit he wore, or that the judge hates lawyers who represent certain kinds of clients.
The thing about judges is that we are just like you, with our own personality quirks, points of view, ways of approaching things, likes and dislikes, patience and impatience, and on and on. Each judge has to make a decision based on the law and the facts, no matter how well or poorly presented, no matter how thorough or slapdash the job done by the lawyers, no matter whether either lawyer bothered to come equipped with some authority for a decision. Faced with that smorgasbord of factors, some judges react like Saint Francis, and some like Jack the Ripper.
It’s true that some judges are more energetic than others, some are more intelligent than others, and some are more persnickety than others. But what has impressed me since I took the bench is that all judges — within those parameters, and within the sphere of their own personalities — are dedicated to getting it right.
We don’t always get it right, though. Judges are not perfect, and we are not required to be. That’s why we have appellate courts.
Thank goodness.
Relief Pending an Appeal
November 6, 2013 § 2 Comments
We’ve talked here before about the concept that the trial court loses jurisdiction during an appeal to amend, modify or even reconsider its judgment.
That rule, however, is not absolute.
In the case of McNeese v. Grant, decided by the MSSC on October 10, 2013, the appellate court was called upon to decide whether the chancellor had erred when he ruled that a R60(b) motion was untimely filed, and that the trial court had no jurisdiction, because the movant, Kenton McNeese, had perfected an appeal from the judgment that was the subject of the motion. Here’s what the MSSC said in its opinion written by Chief Justice Waller:
¶7. Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 460 (Miss. 2009) (citations omitted). However, Kenton requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure.
¶8. This Court has explained that “the adoption of Miss. R. Civ. P. 60 conferred ‘limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected.’” Griffin v. Armana, 679 So. 2d 1049, 1050 (Miss. 1996) (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1347 (Miss. 1989) (citation omitted)). Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). “So long as [Kenton] complied with the requirements of Rule 60(b), perfection of his appeal did not divest the trial judge of authority to vacate [his] judgment.” Griffin, 679 So. 2d at 1050. A party may file his Rule 60(b) motion directly with the trial court not more than six months after the judgment[;] however, once “the record has been transmitted to the appellate court and the action remains pending therein,” leave to make the motion must be obtained from the appellate court. M.R.C.P. 60(b).
The judge had ruled that Kenton’s motion was untimely filed, based on the language of MRAP 4(d), which reads, in part:
If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part hereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions. [Emphasis added]
The italicized language would seem to impose a 10-day limitation on the filling of the motion, as the chancellor ruled. The Supreme Court, however, disagreed, saying at ¶9, “This Court finds that Rule 4(d) applies to the suspension of the deadline by which to file a Notice of Appeal and does not create a deadline by which to file a Rule 60(b) motion.”
I recommend that you read the opinion, because there are some other aspects of interest in this pro se appeal. If you handle any appeals, you need to be familiar with this case.
This is, by the way, Kenton’s second pro se appeal. You can read about his first effort here.
Canary in a Gold Mine*
November 5, 2013 § 2 Comments
Can a father be ordered to buy a car as part of educational (college) expenses for his child? And what exactly is the relationship between college education support and regular child support?
Those were the two essential questions before the court in the case of Brooks v. Fields, decided by the COA October 15, 2013.
Ronald Brooks was adjudged to be the natural father of a daughter, Canary DashSherrel Brooks, born to Janice Fields. The parties agreed to an amount of child support and to split Canary’s medical expenses between them.
Janice later filed a petition to modify child support for the child, who apparently was approaching college age. At the time, Ronald was an unemployed veteran living with his mother. He reported income of $2,700 a month but conceded that his income would increase once his Social Security Disability claim was approved, and he also had recently received $25,000 in lump-sum VA benefits. Canary was receiving $936 a month in VA benefits through her father, and an additional $678 in SS benefits. Ronald claimed net monthly income of $900 a month after payment of all of his living expenses.
The chancellor ordered Ronald to pay $15,000 in a lump sum within 90 days to purchase a vehicle for Canary’s transportation to and from college. He also ordered Ronald to pay the cost of insuring the car. Ronald and Janice were each ordered to pay one-half of the cost of college after grants, etc.
Ronald appealed. He argued that it was error for the chancellor to order him to pay for a vehicle that was beyond his financial means, and that the court’s ruling did not take into account the statutory child support guidelines or the VA and SS benefits that Canary was already receiving.
In its decision, authored by Judge Griffis, the COA spelled out the law of support for college-age children:
¶12. Mississippi law provides that parents can be required to pay reasonable expenses associated with a child’s college education, where the child shows an aptitude for college. Pass v. Pass, 238 Miss. 449, 455, 118 So. 2d 769, 771 (1960). This Court has held that automobile expenses may be awarded as part of college expenses. Striebeck v. Striebeck, 911 So. 2d 628, 637-38 (¶¶36, 41) (Miss. Ct. App. 2005). Specifically, the supreme court has upheld a chancellor’s order for a parent to purchase a vehicle as part of a minor child’s educational expenses, and held that “[t]hough an automobile is not an expense which every parent can provide his/her child, it is not an abuse of a chancellor’s discretion to require a parent to purchase a vehicle where warranted by the circumstances in a particular case.” Chesney v. Chesney, 910 So. 2d 1057, 1065 (¶25) (Miss. 2005).
¶13. The supreme court has also held that it is the responsibility of parents, not the child, to provide funds for education, even if the child has an independent source of funds. Saliba v. Saliba, 753 So. 2d 1095, 1099 (¶13) (Miss. 2000). Payments for college-education expenses, however, do not qualify toward statutory child support, nor will they render child support otherwise within the statutory guidelines to exceed the guideline amount, because “they do not diminish the child’s need for food, clothing[,] and shelter.” Cossey v. Cossey, 22 So. 3d 353, 358 (¶20) (Miss. Ct. App. 2009) (citations omitted).
That bold language is important. I think most chancellors take the position that the college support and child support need to be considered all together, based on the child’s needs and the parents’ resources.
So, what should the trial court consider in determining what is reasonable for a parent to pay? Judge Griffis’s opinion continues:
¶14. Mississippi law, however, limits the parental requirement for payment of educational expenses. The supreme court has determined that a child, if the father is financially able, is entitled to attend college in accord with her family standards. Wray v. Langston, 380 So. 2d 1262, 1264 (Miss.1980) (emphasis added). Mississippi Code Annotated section 93-11-65(2) (Supp. 2012) provides “that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.” The supreme court has interpreted this statute to authorize the chancellor to hold parents liable for educational expenses commensurate with the parents’ station in life; and the parents are not obligated to provide such support if it is beyond their station in life. Saliba, 753 So. 2d at 1103 (¶27) (citation omitted).
¶15. Here, the chancellor clearly had the discretion to require both Brooks and Fields to contribute to Canary’s college-education expenses, which included the vehicle purchase, without consideration of the monthly benefits Canary received and in addition to the statutory support. However, we find that the chancellor abused his discretion when he required Brooks to pay a $15,000 lump sum toward the purchase of a vehicle for Canary. The evidence does not support this decision.
¶16. Brooks’s financial statement indicated that he had $900 in disposable monthly income. Even though his disposable income was soon to increase based on additional disability benefits he was to receive, he was still a disabled veteran on a fixed income. Indeed, a lumpsum payment of $15,000 for the purchase of a vehicle was hardly commensurate with his station in life. There was simply no evidence that Brooks was financially able to pay the cost of the vehicle and the costs of Canary’s other college expenses. Brooks offered to help purchase a vehicle for Canary at a more reasonable price he could afford. The lump-sum payment of $15,000 was well beyond Brooks’s financial means.
¶17. The chancellor relied on the $25,000 lump-sum back payment Brooks received from his Veterans Administration benefits when he ordered Brooks to make the lump-sum payment. There was evidence that Brooks had spent $9,900 of that money for the cash purchase of two vehicles, which would presumably leave him $15,100 in disposable income. However, there was no evidence that Brooks had any of this disposable income or cash on hand at the time the chancellor ordered the payment. Thus, we find that the chancellor’s decision to order Brooks to pay the $15,000 lump sum for the vehicle purchase was not supported by substantial credible evidence in the record. Thus, the chancellor was not within his discretion to award a lump-sump payment of $15,000 to Fields for the purchase of a vehicle for Canary. Therefore, as to this award, we reverse and render the chancellor’s judgment.
The case is a template for how to analyze college support vis a vis child support, and the extent of the parents’ responsibility.
With the reversal, then, the gold mine awarded by the trial court is reduced to a coal mine by the COA.
* Apologies for the title to musicians The Police and Sting.
Jacinto Courthouse
November 4, 2013 § 6 Comments
Shortly after the Chickasaws sold their lands in north Mississippi in 1832 and moved west, settlers populated the area, established villages and towns, and set up local government.
In the northeast corner of the state, the County of Tishomingo was founded, comprised of what are now Prentiss, Alcorn, and Tishomingo Counties, and covering nearly 1,000 square miles.
The town of Jacinto was established in 1836 as the County Seat at the center of the large county, and it quickly became the commercial and governmental hub of the area. Named for the site of Sam Houston’s decisive victory in the Texas Revolution, the little town’s population grew, and it soon had boarding houses, a newspaper, taverns, inns, smithies, mercantile shops, and all of the other amenities one would expect in a prospering frontier town. At the height of its growth, the town had more than 6,600 residents. Its future appeared bright.
In keeping with its ambition to greatness, the county in 1859 constructed a fine courthouse in the federal style in the center of the town to replace the original log building.
Only a few years later, however, the Civil War raged through the area. Corinth, 15 miles north, was devastated by two major, bloody battles over its vital railroad junction, and Shiloh, only a few miles north of Corinth, was the site of two of the deadliest days of the entire conflict.
In 1870, the original Tishomingo County was split into its three present-day counties. Since Jacinto was not conveniently located, it was no longer suitable for a county seat.
The town’s once-promising future became doubtful when it lost the government business that came to the county seat, as well as the trade and traffic that came with it. To compound the problem, the town fathers had made a crucial strategic error when they voted not to allow the noisy, smoky, intrusive railroad to come through the town. Jacinto was further isolated when the telegraph companies refused to run lines into the town after local farmers kept chopping down the poles, blaming the telegraph for a disastrous drought.
The population dwindled until the thriving town was no more than a forgotten rural wayside, albeit a rural wayside with a lovely courthouse.
Through the years the grand old former courthouse served as a Methodist school and church. In the 1960’s the building was sold for salvage for $600. Local citizens became involved and persuaded the salvage company to sell it to them for $2,000. A doctor wrote the check, a foundation was set up, the group raised funds, and preservation of the courthouse was assured. The foundation saw to it that the building was restored faithfully to its original condition. Today, the Jacinto Courthouse is regarded as one of the finest examples of federal style architecture in the nation, and is listed on the National Register of Historic Places.
In 1972, the movie Tomorrow, starring Robert Duvall and Olga Bellin, was filmed in the area. Courtroom and courthouse scenes were filmed in Jacinto.
The courthouse is open to visitors. A caretaker will usher you through and tell you the stories of the town and the old courthouse. There is a rustic museum and there are some reconstructed outbuildings of interest.
Jacinto (the locals pronounce it JAY-sinna) is the site of a massive July 4 celebration each year that is renowned for its political speaking. Thousands of folks congregate for the holiday celebration, and the event is considered second only to the Neshoba County Fair in its attraction for statewide politicians.
The court room, on the second floor, on the left side of the building in the photo above. Jurors sat on the semi-circular bench …
First-floor lobby. The floor is unglazed bricks set in sand. When the building was restored, the bricks were worn, so, in order to keep the original bricks, they were simply turned over in place. The tax collector’s office is the door to the right …
Judge’s chambers on the first floor …
Some Etiquette Tips for Young Lawyers
October 31, 2013 § 6 Comments
Every chancellor has his or her own preferences about how lawyers should conduct themselves in court. You need to acquaint yourself with your chancellor’s likes and dislikes, and attune yourself accordingly. Some practices, though, are universal. Violate them and you will likely suffer the wrath — or at least the dissatisfaction — of your chancellor. Here they are:
- Be on time for court. This is a cardinal rule, and violation can cost you, as spelled out in UCCR (that’s Uniform Chancery Court Rules, for the unitiated)1.05:
“When any civil action has been set for, or adjourned to, a particular day or hour, all officers, parties, witnesses and solicitors whose presence is necessary for the trial shall be present at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.”
In other words, you’d better have a reason for your tardiness that falls in a category other than negligence or willfulness, or you may pay the price. Tardiness is not only rude and disrespectful of the court, it’s also rude and disrespectful of all the others who are assembled awaiting your late appearance.
- Make sure your witnesses understand decorum. UCCR 1.01 says that all proceedings are to be conducted “with due formality and in an orderly and dignified manner.” A trial in chancery is not conducted like a trial in Judge Mathis’s court, although it seems like a significant number of laypeople think so. Tell them to avoid banter and talking to or seeking input from folks in the audience. Advise them to listen carefully to and answer the questions asked, and to behave always in a respectful manner.
- Leave the Doberman act at home. No matter what you’ve seen in the movies, it’s not effective in a bench trial to try to treat witnesses like you were an attack dog. There’s no jury to impress. The judge will likely be unimpressed, and may even rebuke you for browbeating the witness. Sure, it’s okay to bear down and press the witness, testing credibility, but UCCR 1.01 says that “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.” It’s a search for the truth, not theater.
- Three people talking at the same time makes for a bad record. You have to educate your clients and witnesses not to speak over the questions or statements of others. It’s impossible for the court reporter to records that kind of thing accurately, if at all. And keep that in mind yourself. I have had to tell two lawyers and a witness all speaking at the same time to hush, and then I’ve had to tell them not to interrupt or speak over me while I am trying to set matters straight. We all have a responsibility to make a good record, but that’s impossible when everyone is speaking over one another.
- Stand when addressing the court. This is another principle set out in UCCR 1.01. It makes good sense, because it not only shows respect for the court, but it demonstrates for all the laypeople present that this is not like a conversation in the living room; it’s a formal court proceeding.
- Speak up. Many judges are as old as I am. That means that they — as did I — likely spent a youth of dissipation listening via headsets to the Rolling Stones with the volume cranked up to the max. As a result, our hearing is not the best. You grew up in an age where every conversation is amplified by some electronic device. Many courtrooms lack those devices, so you have to crank your own, personal volume up.
- Fill in the blanks. Never present a judgment or property settlement to the judge with blanks that are not filled in. It wastes everyone’s time, causes confusion, and makes you appear to be unprepared. See UCCR 2.06.
- If your case settles, tell somebody. If your case settles, or is rescheduled by agreement, or otherwise is not to be presented for some appropriate reason, notify the court administrator or chancery clerk, or the judge in advance. What would your reaction be if you drove 25, or 50, or 70 miles, only to learn that the trip was entirely unnecessary? What would be the reaction of someone who did that who had the power to hold you in contempt for it? See UCCR 3.12.
I could go on, but I hope you get the picture. Most of you do. Most lawyers, even new ones, grasp the idea of decorum and its importance to court proceedings. It’s a component of professionalism for the practitioner. It’s an element of preserving respect for the court.
Majority Rules
October 30, 2013 § 2 Comments
A young lawyer told me a couple of weeks ago that a woman called her and asked what was the age when a child was no longer entitled to child support. “Twenty-one” was the lawyer’s reply. To which the caller responded, “No, you’re wrong; it’s 23.”
No matter how firmly convinced she was, the caller was firmly wrong, so far as Mississippi law is concerned. Emancipation for all purposes occurs at age 21, unless the parents contracted to support the child to a later age.
In Archie v. Archie, decided by the COA on October 15, 2013, Amos Archie was ordered by the court to pay child support, health insurance, and college expenses for two children, both of whom were over the age of 21. In reversing, the COA, by Judge Barnes, said this:
¶14. A parent has no statutory or common-law duty to support a child who has reached the age of majority. See Hays v. Alexander, 114 So. 3d 704, 707 (¶12) (Miss. 2013). “Legally, a parent is relieved of the duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.” Meek v. Warren, 726 So. 2d 1292, 1293 (¶2) (Miss. Ct. App. 1998) (citing Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989)).
¶15. Under Mississippi Code Annotated sections 93-5-23 and 93-11-65 (Supp. 2012), a chancellor may make a determination that a child has become emancipated when the child has reached twenty-one years of age. If such a determination is made, then “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss. Code Ann. § 93-5-23. Furthermore, the Mississippi Supreme Court held that:
In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (i.e., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by [Mississippi Code Annotated s]ection 93-5-23 for a parent to support [a] child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.
Hays, 114 So. 3d at 709 (¶14) (Miss. 2013) (internal citations and emphasis omitted).
As for the order to maintain health insurance:
¶17. We also find that the order for Amos “to maintain in full force and effect health and life insurance for the children” is erroneous. The supreme court has noted that “[i]nsurance coverage for the benefit of children in divorce cases is an issue of child support.” Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss. 1997) (citing Brennan v. Brennan, 638 So. 2d 1320, 1325 (Miss. 1994)). Absent compelling reasons, such as the mental or physical incapacitation of a child, the obligation of a parent ordered to maintain insurance for the benefit of a minor child ceases when the child reaches majority. Id.
And, finally, with regard to the college education support order:
¶18. Lastly, the chancellor ordered Amos “to pay one-half (50%) of all college expenses for both children, Brittney and [Corey].” The supreme court has stated:
[I]f the [college education] benefit is awarded as child support, that right terminates when the child becomes emancipated[,] . . . but if it is awarded as an adjustment of the rights between the parties to the divorce as to who shall share or pay what portion of the expense of a college education, then the right vests and does not terminate although the child does not enjoy that benefit until he may have passed the age of 21.
Stokes v. Maris, 596 So. 2d 879, 881 (Miss. 1992); see also Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993) (finding that a parent was contractually bound by an agreement to provide “post-emancipation support in the form of college and other expenses”). However, while contractual agreements to provide post-emancipation support during a child’s college attendance are enforceable, there is no such agreement in the present case. Thus, we find that the chancellor erred in ordering Amos to pay for college expenses for both children. [Footnotes omitted]
What is important to take away from this case is that, since Nichols v. Tedder, the MSSC has consistently hewed to the line that emancipation occurs at age 21, unless adjudicated earlier, and that, in the absence of a contract to the contrary, the benefits of minority can not be extended by a trial court beyond that age. That’s important to bear in mind, no matter how firmly convinced and insistent your client seems to be.
Parol Evidence and the Unambiguous Will
October 29, 2013 § 2 Comments
Every now and then, a lawyer will offer testimony about the testator’s intent, arguing that it is admissible as an exception to the hearsay rule under MRE 802(3), which states:
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will. [Emphasis added]
Once that rule is invoked, like a magical incantation, opposing counsel often sits down and docilely allows the floodgates of testimony to open without further objection, freeing a torrent of testimony that the court must process in its final opinion.
Consider, however, that before the court can hear all those statements of memory or belief, you have to ask yourself whether this parol evidence is admissible in the first place — regardless whether it is or is not hearsay?
In Estate of Black v. Clark, decided by the COA on October 8, 2013, the COA said:
¶5. If the language of a will only allows one interpretation as to how the testator’s property is distributed, the will is unambiguous, and courts may not consider parol evidence to determine the intent of the testator. Stovall v. Stovall, 360 So. 2d 679, 681 (Miss. 1978) (citing Seal v. Seal, 312 So. 2d 19, 21 (Miss. 1975)). Parol evidence may only be considered if the language of the will itself can be construed to result in more than one interpretation as to the disposition of property. Seal, 312 So. 2d at 21.
So before MRE 803 is invoked and parol testimony is allowed, it must be established that the will is ambiguous.
The fact that the parties disagree as to a document’s meaning does not make it ambiguous as a matter of law. Ivison v. Ivison, 762 So.2d 329, 335 (Miss. 2000). In determining the meaning of a writing, the court must employ an objective standard rather than taking into consideration the subjective intent or a party’s belief. Palmere v. Curtis, 789 So.2d 126, 131 (Miss. App. 2001).
The process of contract interpretation adds some insight. In the case of Williams v. Williams, 37 So.3d 1196, 1200 (Miss. App. 2009), that process was set out as follows:
“We have delineated a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351 (Miss. 1990). First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. Id. at 352. When the language of the contract is clear and unambiguous, we must effectuate the parties’ intent. Id. However, if the language of the contract is not so clear, we will, if possible, “harmonize the provisions in accord with the parties’ apparent intent.” Id. Next, if the parties’ intent remains uncertain, we may employ canons of contract construction. Id. at 352-353 (citing numerous cases delineating various canons of contract construction employed in Mississippi). Finally, we may consider parol or extrinsic evidence if necessary. Id. at 353″ [West v. West, 891 So.2d 203, 210 (Miss. 2004)]
Applying the Post-9/11 GI Bill
October 28, 2013 § Leave a comment
As war drags on in the Far East, there is a growing number of veterans who have earned entitlement to educational benefits under the Post-9/11 Veterans Educational Assistance Act of 2008, known as the “Post-9/11 GI Bill,” codified at 38 USC § 3301, et seq.
The law grants active-duty veterans payment of college tuition, fees, books, and a monthly housing allowance. Those benefits may be transferred to a family member. The law includes the language, however, that:
” … Entitlements transferred … may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 USC § 3319(f)(3).
George Neville and his former wife, Tina Blitz, were confronted with how to divide Post-9/11 benefits in connection with the college education of their daughter, Joyce. George was eligible for Post-9/11benefits, and he decided to transfer them to Joyce.
George wanted Joyce to attend SMU so as to maximize her Post-9/11 benefits. Tina wanted Joyce to attend a state-supported school in Mississippi so as to qualify for in-state tuition. Joyce chose SMU, and she and George agreed that she would bank the $1,200 monthly housing stipend to use after her entitlement to Post-9/11 benefits expired, presumably when she reached age 21. For her share, Joyce began paying the equivalent of the expenses at a state-supported school.
George filed a petition to modify the parties’ divorce judgment. His position at trial was that he wanted Tina to pay all expenses not covered by the GI Bill, which he estimated to be around $19,000 a semester.
The chancellor modified the judgment to provide that George was entitled to full credit for tuition, fees, and books, but that the $1,200 housing benefit would be taken off the top, and not credited to him. George appealed, complaining that the chancellor’s ruling was a division of benefits contrary to the statute.
In a case of first impression, the MSSC in Neville v. Blitz, rendered September 26, 2013, reversed the trial court’s ruling. The opinion by Justice Coleman, explained:
¶9. We previously have considered distribution of military disability benefits and military retirement pay in domestic relations cases. See Mallard v. Burkart, 95 So. 3d 1264, 1272 (¶ 21) (Miss. 2012); Rennie v. Rennie, 718 So. 2d 1091, 1095 (¶ 13) (Miss. 1998); Hemsley v. Hemsley, 639 So. 2d 909, 913 (Miss. 1994); Newman v. Newman, 558 So. 2d 821, 823 (Miss. 1990). But those cases dealt with the application of other federal laws pertaining to military benefits, such as the Uniformed Services Former Spouses’ Protection Act, not the Post-9/11 GI Bill. The instant issue is one of first impression for the Court, and we have not found any cases from any jurisdiction directly addressing the specific issue at hand.
¶10. In the instant case, the chancellor held that Joyce’s college expenses should be reduced by her scholarships and the $1,200 monthly housing stipend; then Tina and George were to split the remaining amount equally, with George taking full credit for all Post-9/11 GI Bill benefits except the housing stipend. George asserts that the chancellor’s treatment of the monthly housing stipend violated Section 3319, which provides that benefits transferred to a spouse or child “may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S.C. § 3319(f)(3) (2011). Tina maintains that the prohibition on treating transferred benefits as marital property is inapplicable, because the chancellor did not classify the stipend as marital property; thus, she maintains that the chancellor’s decision did not constitute a division of the benefits. Tina also argues that, because George transferred the benefits to Joyce, the benefits belong to Joyce much like her scholarships; therefore, Tina asserts that taking the benefits off the top before dividing the remainder between the parents was appropriate.
¶11. George earned the benefits at issue here long after the parties divorced, and neither party claims that the benefits are marital property. We agree that George’s Post-9/11 GI Bill benefits were not marital property because they were not earned during the marriage; thus, they were not subject to division. See Wheat v. Wheat, 37 So. 3d 632, 637 (¶¶ 14-15) (Miss. 2010); Hemsley, 639 So. 2d at 915 (Miss. 1994). While the chancellor did not label the benefits as marital property, his instruction to take the benefits off the top of Joyce’s expenses gave Tina a credit that she otherwise would not have had and resulted in George not getting full credit for all of the Post-9/11 GI Bill benefits. We find that the chancellor’s decision effectively acted as a “division” of the benefits. Although the proceeding was not an original divorce proceeding, it was a “civil proceeding” pertaining to modification of a divorce decree. Therefore, we conclude that the chancellor’s allocation of the housing stipend amounted to a division of the benefits in a civil proceeding, which is prohibited by Section 3319(f)(3).
¶12. Tina’s argument that the GI Bill benefits belonged to Joyce lacks merit. When benefits are transferred, the service member has the option to revoke the transfer at anytime. 38 U.S.C. § 3319(f)(2) (2011). Thus, the service member remains in control of the transferred benefits, and they still belong to him. The chancellor held that George was entitled to credit for the rest of the benefits – the payments for tuition, fees, and books – but the $1,200 monthly stipend was taken off the top of the expenses and not credited to George. All of the benefits should be treated equally. Because the GI Bill benefits still belong to George, he should be credited with all of them, and none of the benefits should be divided between George and Tina.
The case was remanded to the chancery court.
The chancellor in this case did exactly what I think most chancellors would have done; that is, to credit George with the actual benefit of his entitlement that was being applied for the child during her minority, and splitting the remaining unpaid expenses between the two parents.
The wild card in this case, however, was the GI Bill, which includes express language against dividing the benefits. In this scenario, the MSSC found that the chancellor had, indeed, divided the benefits by force of his ruling, against the language of the statute.
This would seem to be a more frequently encountered fact situation as greater numbers of active-duty veterans pass through our courts in domestic relations actions. The Post-9/11 GI Bill is a law with which you need to become familiar.
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