A History of Family Violence

August 26, 2013 § 2 Comments

A serious act or history of family violence has an impact on the adjudication of custody, and even visitation. It’s a subject I’ve posted about here,  here and here.

The matter is addressed in MCA 93-5-24(9)(a)(i), which establishes a rebuttable presumption regarding family violence: ” … it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.”

The statute does not explicitly define the term “family violence,” but it does refer to violence against ” … the party making the allegation or a family household member of either party.”

The statute goes on to say that the court may find a history if it finds either (a) one incident of family violence that resulted in serious bodily injury, or (b) a pattern of family violence. The finding is by a preponderance of the evidence.

In the COA case of Rolison v. Rolison, decided December 11, 2012, Alisa Rolison argued that the chancellor had refused and failed to apply the presumption against her ex-husband Gary in a case where there was proof in the record of what she considered to have been family violence. Judge Fair, for the majority, stated the court’s ruling:

¶6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss. Code Ann. § 93-5-24.

¶7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶11-12). The supreme court upheld awarding custody to the maternal grandparents explaining [Fn 1]:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue. J.P., 987 So. 2d at 981-82 (¶16). [Fn1]

[Fn1] This Court [the COA] rendered a similar decision in Lawrence v. Lawrence, 956 So. 2d 251, 260-61 (¶¶33-35) (Miss. Ct. App. 2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss. Code Ann. § 93-5-24.

¶9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

In Rolison, the facts as to Gary’s violence simply did not rise to the level that would put the presumption into effect. If there were any serious episode, it was by one of the children against Alisa, requiring her to have surgery.

It’s hard to read the cases and come away with a clear picture of exactly what it is that constitues a “history” of “family violence.” Those are terms of art, but the definitions seem to be a moving target, based on the facts in the case. Sort of like US Supreme Court Justice Potter Stewart’s “I know it when I see it” definition of obscenity.

The main point to bear in mind is that, as you develop your child custody case, determine whether there are facts that might bring the statute into play. If so, peruse the statute and see whether and how it can help you prevail. Or, if you are on the downhill side of the case, look at the 6 factors the court has to consider to overcome the presumption and see how you can turn them to your advantage.

Scene In Mississippi

August 23, 2013 § 8 Comments

Where?

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Tailoring Your Proof to Fit Your Case

August 22, 2013 § 2 Comments

Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.

All most of us know about Pelton is what we read in the opinion.

But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.

For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.

In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?

MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.

The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.

Inadequate Findings in a Factor Case = Remand

August 21, 2013 § 3 Comments

Most lawyers, when they are through with a case, don’t want to revisit it. That’s what makes a remand so detestable. Those do-overs are a pain.

The most sure-fire way to get a do-over is for the trial judge not to address the factors in a factor case. For those of you who have not been paying attention, certain kinds of cases require that the chancellor consider certain factors in making an adjudication. I have called it Trial by Checklist. When the chancellor does not tick off the items on the checklist, remand is practically automatic.

The latest example is the COA’s August 13, 2013, decision in Pelton v. Pelton, in which the chancellor did not: classify the assets as marital or non-marital; do an analysis of the Ferguson factors in making equitable distribution; or apply the Armstrong factors for alimony. Result is a do-over. 

If you wind up with an adjudication in which you feel that the chancellor did not address the applicable factors, or where you feel that they were not adequately addressed, here are several suggestions to remedy the situation:

  1. File a timely R59 motion asking the court to make specific findings on the applicable factors. In Pelton, the parties did file post-trial motions, but the COA decision does not spell out what the parties were asking the court to do.
  2. If you are concerned that you did not make a good enough record for the judge to make findings on the proper factors, ask the court to reopen the proof to allow you to make a record. That would be a R59 motion, which must be filed within 10 days of the judgment.
  3. You can also in a R59 motion offer to do proposed findings of fact and conclusions of law.

Another Announced Settlement Bites the Dust

August 20, 2013 § 6 Comments

It’s a familiar occurrence: the parties arrive all lawyered-up for trial; judge grants some time to “talk”; the talking leads to a concensus of sorts, or even to a comprehensive settlement; the lawyers meet with the judge and fill the judge in with an outline of the terms. Let’s stop there.

To that point, the situation can still reach a happy conclusion. The lawyers can retire to a computer and hammer out the necessary agreed judgment, or property settlement agreement, or consent to divorce, or other documents, have them signed by the parties, and present them to the court and be done with it.

Or, as frequently happens, they can make an announcement on the record, confirm their agreement before the judge, who incorporates into a judgment, and go their merry ways.

Merry, that is, until one of the parties changes his or her mind and hires another lawyer to torpedo the erstwhile agreement.

The latter (beginning above with the word”Until”) is what happened in the COA case of Reno v. Reno, decided August 13, 2013.

Randy and Casey Reno appeared for a divorce trial, and settlement talks broke out. The parties announced that they had agreed to consent to divorce on irreconcilable differences. The chancellor heard the parties confirm their agreement that they consented to an irreconcilable differences divorce, and she was pretty clear about the import of what the Renos were doing:

In order for the Court to proceed on the ground[] of irreconcilable differences, I have to have both of your consent[s] . . . . Normally, the consent is reduced to writing[,] . . . but there’s . . . case law that allows us to take testimony from y’all about your consent[;] then it will be reduce[d] to writing in the form of the divorce decree.

. . . .

If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then – and you understand that once you enter into this consent, you can’t change your mind. You can’t back out. I’m going to proceed on irreconcilable differences . . . .

With the verbal consent in place, the court heard the parties agree that each would keep his or her own personal property, and the judge proceeded to a hearing on the contested issues, which were custody and visitation.

Casey was unhappy with the outcome, which gave Randy custody, and she appealed, raising the sole issue that the consent was invalid because it was not in writing, as required by the statute. The COA reversed, relying on Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss. 1992), which held that a consent, in order to be valid, must meet the three criteria set out in MCA 93-5-2(3):

  1. It must be in writing, signed personally by both parties; and
  2. It must state that “the parties voluntarily consent to permit the court to decide” the specific issues on which they cannot agree; and
  3. It must state “that the parties understand that the decision of the court shall be a binding and lawful judgment.”

Since the consent in this case was not in writing, the COA had no choice but to reverse.

My thoughts:

  • The chancellor undoubtedly had in mind the COA case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), when she stated that there is case law that allows the judge to take oral testimony about the consent. Bougard was not a consent case. In Bougard, the parties dictated their property settlement agreement into the record, which was approved by the trial court. The COA affirmed, despite the statutory requirement that there be a written propertys settlement agreement in an irreconcilable differences divorce. Bougard, however, is the only case of which I am aware in which our appellate courts have upheld a settlement announcement not reduced to writing. As far as the consent cases are concerned, they are uniformly consistent with Massingill, as far as I can tell.
  • This case hammers home a point I made in a previous post that ” … there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid.” The concept of a person’s word being his or her bond is as outmoded in the 21st century as buggy whips (that is, buggy whips used as buggy whips, if you get my drift).  I think that outmoded concept of honor is why chancellors are so ready to accept on-the-record settlement announcements, and why they are so loathe to let the parties back out of them. Alas, though, neither the statutes nor the mores of this era are consistent with that approach.
  • Lawyers in these parts will tell you how much I dislike settlement announcements. I don’t like them for all the reasons set out above. But I also dislike them because quite often they wound up back in court because something was left out, or there is a disagreement over whet was meant, or somebody misunderstood somebody else. To me, it’s better just to take the time to put it in writing where everyone can see it, and go from there.

Ethics and Social Media

August 19, 2013 § 3 Comments

Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.

Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.

Are there ethical implications to that advice?

Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:

A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.

Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.

Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.

Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.

As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.

The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.

It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.

Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.

I don’t have an answer. I only have the question.

An earlier post on introduction of all forms of electronic evidence is here.

Thanks to attorney Marcus D. Evans.

Six Legal Haikus

August 16, 2013 § 2 Comments

Six wicked verses on the practice …

Measuring Time

Remember sun, moon,
day, night, week, year? Now it’s all
six-minute increments.

Employment Rates

Well-meaning friends ask,
“What type law will you practice?”
Any type that hires

The Lawyer’s Spouse

That won’t work on me;
I’m not opposing counsel.
“Objection” my ass.

Cease and Desist

50 paragraphs,
300 commas, therefores,
Just to say: Stop it.

Conference Call

“This guy’s a dumbass,”
I said after hitting mute.
Oops. Didn’t hit mute.

Personal Injury Lawyer

Am ambulance wails.
“Shouldn’t you be chasing that?”
My friends are assholes.

From Poetic Justice: Legal Humor in Verse, by J.D. Dupuy and M.L. Philpott, 2013

Venue in Divorce and the Accompanying Child Custody Action

August 15, 2013 § Leave a comment

Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.

Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.

Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.

The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?

Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).

Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.

The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).

Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.

Mitchell sought an interlocutory appeal, which the MSSC granted.

In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:

  1. Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30). 
  2. “We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
  3. And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).

That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:

I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.

As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.

I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there. 

 

Income Withholding Orders

August 14, 2013 § 6 Comments

Child support is generally paid directly to the recipient parent, or to DHS in cases where that agency has filed an action.

But did you know that federal law requires that child support must be collected by directing employers to withhold income, and that a certain prescribed form, referred to as an Income Withholding Order (IWO), must be entered in every child support case, except in certain circumstances that are mentioned below?

The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 required the entry of IWO’s in all child support cases entered on or after January 1, 1994.

Every IWO must direct payments to the State Disbursement Unit (SDU). Payments may not be directed to an individual. An IWO that directs payments to an individual is required to be rejected. Mississippi does, by the way, have its own SDU.

Also, effective May 31, 2012, every IWO must be on the form prescribed by the Office of Management and Budget. You can access a fillable version of the form by clicking this link. Instructions for completing the form, with a link to a .pdf version, are at this link. Employers are directed in their instruction material to return any IWO that is not in the prescribed form.

The law mandates that the income of the paying parent shall be subject to income withholding on the effective date of the order, without regard to whether the parent is in arrears in payments. It is for collection of all child support, and not limited to collection of arrearages.

The only exception to child support withholding is set out in § 486(a)(8)(B)(i) of the Social Security Act, which allows direct payment in two cases:

  1. Where one of the parents demonstrates, and the court finds, that there is good cause not to require immediate income withholding; or
  2. The parents have a written agreement for an alternative arrangement.

The original IWO forms that went into use in the 1990’s (then referred to as “Wage Withholding Orders” or WWHO) were either effective immediately or could be made effective at a later date. That feature is eliminated, since all orders are now effective immediately on entry.

Also, if you are still using WWHO forms from the 1990’s, your forms are hopelessly antiquated. You must switch over to the IWO form referred to above.

In my experience, there are districts around the state where IWO’s are unknown. Why DHS has not made it a priority to see that the law is widely implemented is a mystery. Or maybe they have, in places where I have not been able to observe.

We have used WWHO’s in this district since the early 1990’s. Mandatory withholding, however, is rare in this district; my guess is that only two to three percent of cases employ it. I have not seen an IWO on the latest form since they went into effect in May of last year; all the withholding forms I see are old WWHO forms.

Rights of a Widow, Part II: Renunciation of the Will

August 13, 2013 § Leave a comment

In Part I, we discussed the right of the widow (which also embraces widowers) to one-year’s support from the estate when the spouse has died. In this post we deal with the right of the widow to renounce a will when it does not make adequate provision for her. The right is codified in MCA 91-5-25.

As we saw in Part I, Joe Howard Estes and Sarah (Young) Estes had been married only nine months when Joe Howard died. Sarah had moved out of Joe Howard’s home and back to her own home shortly after he had suffered from some serious health issues, including amputation of his leg and arterial surgery. She filed for divorce, which was pending at the time of Joe Howard’s death.

Joe Howard’s will, which was admitted to probate, made no provision for Sarah at all, so she filed notice of renunciation with the court, which eventually awarded her a child’s share (1/5) of the estate, less $12,000 that she had been granted as a widow’s allowance.

The co-executors appealed, and the COA reversed in Estate of Estes: Estes v. Estes, decided December 11, 2012. Judge Maxwell, writing for the majority, summed it up:

¶17. Mississippi Code Annotated section 91-5-25 (Rev. 2004) allows a widow whose deceased husband “does not make satisfactory provision” for her in his will to renounce the unsatisfactory provision and elect to take the a child’s share of the estate. See also Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923) (holding second husband not provided for in his deceased wife’s will was entitled to inherit a child’s share of his wife’s real property). Under section 91-5-27, when the husband’s will makes no provision at all for his widow, no renunciation is required—it will be assumed that the widow has elected to take her share of the estate. Miss. Code Ann. § 91-5-27. Thus, the chancellor was correct in one sense that the right to inherit under 91-5-27 is “automatic” because, in contrast to the right under section 91-5-25, no act of renunciation or election of a child’s share is required.

¶18. But the chancellor was incorrect that this automatic right to inherit, as if the deceased husband died without a will, arises in every situation without exception. The record shows the chancellor believed his hands were tied regarding Young’s renunciation of Estes’s will and right to inherit one-fifth of the estate. Although acknowledging the evidence supporting Young’s abandonment of the marriage, the chancellor nonetheless awarded her a child’s portion of the estate because he was not aware “of any case law at all that would reflect . . . that [Young] somehow would not be entitled to a child’s portion[.]”

¶19. But there is Mississippi precedent of this nature. Our supreme court has previously acknowledged the operation of estoppel when a spouse trying to take a child’s share of the estate has deserted or abandoned the marriage. In re Marshall’s Will, 243 Miss. at 478, 138 So. 2d at 484 [(1962)]; Walker v. Matthews, 191 Miss. 489, 511-12, 3 So. 2d 820, 826 (1941); Williams v. Johnston, 148 Miss. 634, 636-37, 114 So. 733, 733-34 (1927). In Tillman v. Williams, 403 So. 2d 880, 881 (Miss. 1981), the supreme court clarified what was required for estoppel: “Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel.”

¶20. While he acknowledged evidence showing Young’s desertion or abandonment of the marriage, the chancellor did not make a finding of clear desertion or abandonment. This was because he mistakenly believed such an estoppel-type finding would have no legal effect on Young’s right to inherit. Since the award of a child’s share of the estate was based on an erroneous application of the law, we reverse the award to Young of one-fifth of the estate and remand for a determination of whether Young’s action met the clear-abandonment standard of Tillman, thus estopping her from inheriting from the Estes’s estate. [Footnotes omitted]

So it is estoppel that will preclude a spouse who has abandoned or deserted the marriage from taking a child’s share. For the estoppel to come into effect the chancellor has to make a finding that “there is a clear desertion and abandonment.”

An interesting sidelight in this appeal is that the appellants did not specifically raise Sarah’s renunciation as an issue in the appeal. How, then, could the COA address it? The COA opinion said this about it at Footnote 5 to ¶16:

While the co-executors did not raise as a separate issue Young’s renunciation of the will, they raised the issue of Young’s abandonment of the marriage and its effect upon Young’s rights, as well as challenged the amount of the award of one-fifth of the estate. Thus, we find the question of the will’s renunciation and Young’s right to inherit a child’s share is before us. But even were it not, reversal based on the chancellor’s misapplication of the law would be warranted under plain-error review. “Plain-error review is properly utilized for ‘correcting obvious instances of injustice or misapplied law.’” Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981)); see also M.R.A.P. 28(a)(3) (permitting this court to “notice a plain error not identified or distinctly specified” in the appellants’ statement of issues).

A post that talks about some of the quirks of renunciation can be found at the link.

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