Rights of a Widow, Part I: Widow’s Allowance
August 12, 2013 § 1 Comment
Joe Howard Estes accumulated a considerable estate during his lifetime. On August 3, 2006, he married Sarah (Young) Estes. Not long after the marriage, Joe Howard suffered health complications that resulted in amputation of a leg and surgery to alleviate an arterial blockage. Later in that same year, Sarah moved out of Joe Howard’s home and back into her own home. She filed for divorce a few months after moving out.
Joe Howard died on May 17, 2007. The divorce action was still pending at the time of his death, and he and Sarah had not resumed cohabitation.
Joe Howard had a will, which his children probated, that made no provision for Sarah.
Sarah filed a petition for one year’s support (widow’s allowance) and exclusive possession of homestead property, renounced the will, and asked for appointment of appraisers.
There ensued several years of litigation between Sarah and Joe Howard’s four surviving children. In the course of the litigation, the chancellor granted Sarah a widow’s allowance of $12,000, and awarded her one-fifth of the estate — a child’s share — of some $80,000, from which he subtracted her $12,000 allowance.
The co-executors appealed.
The COA reversed the trial court in the case of Estate of Estes: Estes v. Estes, decided December 11, 2012. In this post, we’ll look at the court’s ruling on the issue of widow’s allowance.
Judge Maxwell’s opinion explains it clearly:
¶10. A widow or widower who was dependent on the surviving spouse is statutorily entitled to a year’s allowance for his or her maintenance and that of the children, if any. Section 91-7-135 imposes a duty on “the appraisers [of an estate] to set apart out of the effects of the decedent, for the spouse and children who were being supported by the decedent, or for the spouse if there be no such children, or for such children if there be no spouse, one (1) year’s provision[.]” Miss. Code Ann. § 91-7-135. This provision may take the form of money “necessary for the comfortable support of the spouse and children, or spouse or children, as the case may be, for one (1) year.” Id.
¶11. Under section 91-7-141, the chancery court has discretion to “apportion the one year’s allowance, or any part of it, according to the situation, rights, and interests of any of the children or the widow, and may direct the payment of any portion of the allowance which may be found necessary or proper to any of them.” Miss. Code. Ann. § 91-7-141; see also Bryan v. Quinn, 233 Miss. 366, 368, 102 So. 2d 124, 125 (1958) (citations omitted) (“The rule is well settled in this State that the widow’s allowance for one year’s support is within the sound discretion of the chancellor.”).
¶12. While the chancellor relied on this statutory authority to award Young a $12,000 widow’s allowance, Young was not “being supported by the decedent” and, thus, not in need of provision from Estes’s estate to make her comfortable. See Miss. Code Ann. § 91-7-135. So we find the award an abuse of discretion.
¶13. Our supreme court has clarified that the statute “relative to the widow’s allowance provides that such allowance shall be set aside to the widow and children who were supported by the decedent.” In re Marshall’s Will, 243 Miss. 472, 479, 138 So. 2d 482, 484 (1962) (emphasis added). The statute places on the widow “the burden of establishing her claim to a year’s support, [by] showing either that she was being supported by [her husband] at the time of his death or that she was away from him without fault on her part.” Id. Here, Young clearly failed to meet this burden.
¶14. It is undisputed that Young left Estes’s home by her own volition after his leg was amputated. And she was living in her own home at the time Estes died. In Byars [v. Gholson, 147 Miss. 460, 465, 112 So. 578, 578-79 (Miss. 1927)] , the Mississippi Supreme Court held that a widow who had been living apart from her husband, without his fault, and who was not supported by him, was not entitled to one year’s support from his estate. Byars, 147 Miss. at 465, 112 So. at 578. We find the same is true here.
¶15. Because we find the widow’s allowance was not supported by substantial evidence of Young’s financial dependence on Estes at the time he died, the chancellor abused his discretion in awarding Young one-year’s support. We reverse the award of a $12,000 widow’s allowance and render judgment against Young’s claim to one-year’s support. [Footnotes omitted]
I think that there is a widespread belief that the widow’s allowance (that term embraces widower’s allowance also) is automatic, and that the only issue is how much. That’s not so, as Estes tells us.
In Part II, we’ll address how the COA dealt with Sarah’s rights due to renunciation of the will.
Advice for a Young Lawyer
August 9, 2013 § 15 Comments
Now that they have the bar exam behind them, we will soon welcome as colleagues the latest crop of young lawyers.
Before they get swallowed up by the demands of their new profession, I thought I would offer some advice on how to be a lawyer and a happy person at the same time. One or two of you who have been in the gristmill for a while may find some of these ideas useful for yourself.
1. Focus on your own story.
You are in the legal profession because you are competitive to some degree. So when you’re struggling, it’s hard to hear that a colleague just hit a million-dollar fee, or a former law school classmate landed a high-paying job. It’s not mere envy you feel; it’s something like the same feeling a runner gets seeing a competitor break the tape 10 yards ahead.
Yes, it’s difficult not to focus on others’ gains when they are the talk of the courthouse. The danger is that, when you focus on other people’s stories, you tend to lose sight of your own.
Most of what happens in your life is a product of the choices you make. That means that you get to write your own story. You get to define the main character, and you decide the plot, the supporting cast, and the style of the story.
From time to time, stop to read back over your story. How is it going? Do you like the characters? Do you like the way the plot is developing? Should some characters be replaced? How about the tone; is it what you want? Do some parts need to be rewritten or the plot revised to move in a more satisfying direction?
Take stock of your own accomplishments. Evaluate where you are in terms of your goals. Give yourself credit for how far you’ve come. Let the achievements of others inspire you to greater heights, but focus on your own goals and how to accomplish them.
Savor what you have, whether great or meager, and foster a spirit of thankfulness. Most of us, even in modest circumstances, enjoy far more than we will ever really need.
And remember that the practice of law is not a zero-sum game. When one lawyer “wins,” that does not mean that all other lawyers “lose.”
2. Work for more than a paycheck.
No matter what you read to the contrary, it’s true that your work does define you. It can define you as a greedy, money-grubbing blood-sucker. Or it can define you as a person who makes a difference in the lives of those with whom you come into contact, in your profession, and in your community.
Early in your career you need to make shrewd choices about the work you will do that will define you. One of the advantages of the law is that you have great control over the kind of work that you will do that will define you. You get to choose work that will fulfill you.
Choose to do work that will add value to your clients and yourself. I am not talking about value in terms of dollars, although earning a living is important. I am talking about making sure that your work makes your clients’ lives better and makes you a better person. I am talking about working for more than a paycheck.
When all you work for is a paycheck, the only thing in your work that you have to look forward to is payday.
The practice of law takes up a large percentage of your waking life (and sleeping life, for that matter). Do legal work that adds something more than income to your life. Consciously try to make a difference for the good, to leave things better than when you found them. You’ll find yourself a happier, more productive and more complete person.
3. Find balance.
You may have to work 70 hours a week when you first start practicing, simply because, as you will find, law school merely introduced you to the law and taught you how to think like a lawyer. Only by actually practicing law, however, do you to learn how to be a lawyer. And that takes an investment of time.
But as you grow into lawyerhood and become more efficient, you need to pare down the hours you work to make room in your life for some living.
Balance out your law time with family, church, friends, exercise, and quiet time. Paint landscapes. Garden. Cook out. Read something trashy. Listen to music. Go fishing. Get out of town. Bake a cake. Go to a movie. Go out to eat. Hug your kids. Have a romantic evening. Sit under a shady oak tree and watch the clouds. Take a walk. Pray. Nap. Have a tall glass of sweet tea. Enjoy.
And when I say balance, I mean balance. It does no good to squeeze exercise into your life only for it to become an obsession. The same goes for any other endeavors you work into your picture.
4. Be positive; let loose your hatred and resentments.
It’s easy for lawyers to become cynical and distrustful, to question others’ motives, and to harbor hatred and resentments.
The more we let the darkness into our lives, the more the light is driven out.
Try to focus on the positive. Take note of the negatives, the hurts, the slights and outrageous conduct of others, and learn from them. And then let them go. Let them go and free yourself from them. When you harbor hatred and resentment, you are held hostage by the very person or thing you hate or resent.
5. Keep your worries and fears in perspective.
Mark Twain said, “I am an old man and have known a great many troubles, but most of them have never happened.”
Worries and fears can be paralyzing. Of course, kept in perspective they can be motivating. But too often we let them grow into specters that loom so large that they choke out our judgment and ability to act.
The fact is that most of our worries and fears never come to be. The sooner you take that to heart and live by it the sooner you will be free of their shackles. The sooner you shrink you worries and fears down to their proper size in your life the sooner you will lose the driving need to control everything and everyone in your life.
6. Difficulties are opportunities.
Losing a case, disappointing a client, making a mistake, angering a judge; all are part and parcel of practicing law. Get over them, set them aright, and move on to the next thing.
The difficulties and struggles of the practice of law are the forces that sculpt you into the kind of lawyer that you will grow to be. How you react to those forces will determine whether you become a polished work of art or a pile of dust.
Every lawyer has a bad day. Decide that you will not let it be any more than that. Adjust to it, set what is wrong aright, and move on to the next thing.
It’s called the practice of law because it’s a never-ending, ever-evolving process of daily lessons and new possibilities, no matter how long you’ve been in the profession. Every obstacle presents an opportunity to find a new way, to use your ingenuity and creativity, to offer a new solution.
7. Seek happiness that will endure.
Material goods can make us happy. The delicious aroma of leather in a new BMW, the sleek grain of mahogany in your new office table, Ben & Jerry’s Red Velvet Cake ice cream, and a new pair of Italian shoes, are all sensory pleasures that we can all appreciate.
The happiness that material goods bring us, however, is like cotton candy. Soon after the pleasurable flavor and sugar high dissipate, we are left with nothing of substance.
You will find that the happiness that will endure comes from what enriches your mind and spirit. Money will not do it. Fame and material goods will not do it. You will have to discover for yourself what truly enriches your own mind and spirit. As you do, you will find a deep happiness that will sustain you through life’s changes. The more you nurture that kind of happiness, the stronger and more substantive person you will become.
Seek happiness that will endure. Seek richness in mind and spirit. There you will find contentment.
8. Grow where you’re planted.
Many law students I have spoken with say that they have chosen the legal profession because they want to make a difference in the world. It’s a deceptively large ambition.
Most lawyers learn in a short time after law school that it’s almost impossible to change much in the world, and, in fact, most of the changing is done to the young lawyer instead. That’s okay. It’s an important lesson to learn. Most of us will have very little impact on the world at large.
That’s due in large part to the simple fact that most of us move in small circles, in small towns, in a small state. So how can one make a real difference in such microscopic circumstances?
To make a real difference, start with your immediate environment. You can influence your family, clients, fellow lawyers, judges, clerks, church, community, and everyone with whom you come into contact, through your attitude, thoughtfulness, professionalism, good judgment, values, humor, humility, character, patience, faithfulness, kindness, and joy.
You will find that the ripples you send out as you make a splash in your little world will radiate out for good or ill. So make sure they are for good.
Ambition is a professional hazard of lawyers. You will see that some lawyers are never satisfied with the small stage they are on, and the role they have to play. They are always anxious and fretful that they are missing out on the bigger show.
If you can tailor your own ambitions to fit the scope of the life that you have chosen, you will free yourself of many needless anxieties that sap your energy and enthusiasm, and drain your happiness and joy.
When you decide to grow where you are planted, you will find yourself content to make your little world a better, more fulfilling place. You will have made a difference. You will find happiness in that.
9. Avoid sharp objects.
People who juggle sharp knives usually get cut.
People who associate with negative, demanding, hurtful, self-centered, boastful, spiteful, selfish, unfaithful, vengeful, dishonest, envious, greedy, abusive, conniving, bitter, crafty, controlling, self-entitled, passive-aggressive, manipulative, lazy, bigoted, crazy, cynical, gossipy, angry, narrow-minded, or shallow individuals are like people who juggle sharp knives.
Sure, you will encounter all of those kinds of people as clients, colleagues, judges, in church, and in your daily comings and goings, but that does not mean that they have to be involved in your life. Deal with them as you must, in due course, and then move on to something, and someone, else.
Eschew those kinds of people like you would dangerous objects, because their friendship or involvement in your life is, indeed, fraught with danger. They will poison your attitude and your happiness, and they will kill your spirit if they can.
10. Appearances can be deceiving.
You will find that there are lawyers who will look down on you because you don’t wear the right suits or shoes, or don’t drive the right car, or don’t belong to the right firm, or don’t handle the right kind of cases.
Those poor people see only what is on the surface, when the real value is what is in your mind and soul.
Pay them no mind. Waste no time or effort trying to ingratiate yourself with them. You will never succeed because they need your perceived inferiority to maintain their perceived superiority.
Their values are empty. Reject them. Instead, concentrate on enriching yourself in all the things that do matter and generate enduring happiness. You will be a better person – and lawyer – for it.
Retired Circuit Judge Lester F. Williamson, Sr., R.I.P.
August 8, 2013 § Leave a comment
Retired Circuit Judge Lester F. Williamson of Meridian died yesterday.
The funeral is scheduled for Monday at 10:30 am at Poplar Springs Methodist Church in Meridian.
Speculation About Undue Influence Will Not Win the Case
August 8, 2013 § 1 Comment
We’ve talked here before about what one needs to prove to make out a case of undue influence in a will contest. It’s not an easy case to make, and the proof must be clear and convincing
In the COA case of Estate of Strong: Johnson, et al. v. Washington, handed down July 16, 2013, contestants Johnson, Foster, Miller and Wright claimed that their father, Rev Strong, had been subjected to undue influence when he executed a will in 1986. Washington came to be appointed executrix of the contested will.
Under the terms of the will in question, Rev. Strong left $10,000 to Miller, and bequeathed some real property to Wright. All of the residuary estate went to his wife, Earnestine, who was the step-mother of the contestants. Johnson and Foster were disinherited.
The parties engaged in discovery, following which Washington filed a motion for summary judgment.
The contestants filed three affidavits in oppositiion to the motion, alleging that Earnestine had been controlling, and that Rev. Strong had stated on many occasions that he regretted marrying her. They averred that Earnestine would not even allow the contestants into the home to visit their father. The contestants admitted that their father had testamentary capacity at the time he executed the will, and that he was of sound mind, They emphasized that Rev. Strong was a private person who handled his own financial and business affairs. There was no proof that Rev. Strong was in poor health or suffered from any condition that made him dependent on Earnestine. The record also established that Earnestine was not present when Rev. Strong executed the will, and that he kept it in a safe deposit box to which Earnestine did not have access.
If the contestants made a triable issue for a jury, then, it turned on their allegations that Earnestine was overbearing and controlling. Did they make a case sufficient to get by MRCP 56?
The chancellor ruled that they did not, granted summary judgment, and the contestants appealed.
Here is how the COA addressed the issues, per Judge James:
¶12. The only evidence the Contestants have to support their assertion of undue influence is the three affidavits alleging that Earnestine was overpowering and controlling toward Rev. Strong. However, not one of the affidavits contains specific facts showing that Rev. Strong was improperly influenced by Earnestine during the execution of the disputed will. The Contestants’ blanket allegations do not pass muster to show a triable issue. “The trial court should only submit an issue to the jury when the evidence creates a question of fact over which reasonable jurors could disagree.” In re Last Will & Testament & Estate of Smith, 722 So. 2d 606, 611 (¶17) (Miss. 1998) (citing Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992)). Here, the evidence does not formulate a factual question over which reasonable jurors could disagree.
¶13. “A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will.” [In re Last Will and Testament of] Smith, 722 So. 2d [606] at 611-12 (¶18) (citing Simm v. Adams, 529 So. 2d 611, 615 (Miss. 1988)). However, the existence of a confidential relationship, alone, does not automatically raise a presumption of undue influence. [In re Estate of] Laughter, 23 So. 3d [1055] at 1064 (¶37) (citing Wright v. Roberts, 797 So. 2d 992, 999 (¶21) (Miss. 2001)). There must be circumstances where the beneficiary in the relationship took some active part in preparing the will. Id. (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959)). There is no evidence of undue influence here. As previously mentioned, there is nothing in the record to suggest that Rev. Strong was dependent upon Earnestine in any capacity. According to the Contestants, Rev. Strong was very independent and handled his own financial affairs. Earnestine was never granted power of attorney during their marriage. Furthermore, there is no evidence that Earnestine actively participated in the will’s preparation or was present during its execution.
The court also quoted from In re Estate of Pigg, 877 So.2d 406, 412 (Miss. App. 2003) as to what the contestants need to show to make a jury issue:
[¶10] … Those contesting a will need not present sufficient evidence to prove undue influence. The contestants, however, must at least raise sufficient question to cause jurors to conclude that the proponents failed to prove that the will was free of improper influence[.] . . . The jurors had to decide if the inferences of undue influence made the quantum of evidence in support of due execution less than a preponderance. The best evidence on the issue was the testimony of the subscribing witnesses and others who were present during the execution. From no one contemporaneously involved . . . was there any suggestion that Mrs. Pigg was unaware of what she was doing or that her personal desires had been overwhelmed by someone else. Doubts about due execution that arise solely from speculation are insufficient. That would be too light a counterweight to the evidence of proper execution. [Emphasis in original].
The counterweight sufficient to overcome evidence of proper execution is clear and convincing evidence that the the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and it has to be proven by clear and convincing evidence. It’s not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.
In this case the contestants’ proof fell short because they could only speculate that their father acted against his true wishes, and they had no proof that Earnestine was actually in a position to exercise undue influence. The mere facts that she was domineering and even alienating were not enough.
Another Non-Family-Use Case
August 7, 2013 § 2 Comments
I’ve mentioned here before that I am no big fan of the “family-use” doctrine that morphs separately-owned property into marital merely because it was used by the family.
There are some exceptions to the rule, however, as I have posted about. Here is a post where the COA refused to apply it. Here is another post where I pointed out cases holding that neither plantation and maintenance, nor payment of taxes, nor even joint titling convert separate property into marital.
The latest case, Renfro v. Renfro, decided by the COA on July 30, 2013, is yet another where the appellate court did not agree with the chancellor’s application of the concept.
Claudia and Johnny Renfro married in 1987, and had no children. In January, 2011, they separated after Claudia discovered that Johnny was involved in an adulterous affair, and Claudia sued for divorce.
At issue in the divorce was equitable distribution. The parties had accumulated the usual marital things, including cars, retirement accounts and other financial assets, a residence. In addition to all of the other assets, there was a 140-acre tract of unimproved land that Claudia’s mother had deeded to her in 2007.
Following a trial, the chancellor adjudicated all of the assets, including the 140-acre tract, to be marital property subject to division. She allocated one-half of the assets, which totalled in value nearly $600,000, to each party. In her opinion, the chancellor found as to the 140 acres as follows:
The testimony and evidence is substantial that the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny]. Further, and perhaps most importantly, [Claudia] indicated that the development and management of the property as a tree farm was for the purposes of providing income for the parties’ retirement. As such, the court finds that the normally non-marital character of the property was changed by the family[-]use doctrine, Algood [v.] Algood, 63 So. 3d 443 (Miss. [Ct.] App. 2011), as well as by conversion by implied gift, Algood, supra, such that the property lost its non-marital nature and now must be considered marital property subject to equitable distribution.
Claudia appealed, complaining primarily that the 140 acres was not marital property subject to division, and that the chancellor had misinterpreted the evidence.
In its opinion, penned by Judge Carlton, the COA found that there was inadequate evidence to support the judge’s finding that the tree farm on the property had been developed as part of the parties’ retirement plan.
As for the other indicia of family use relied upon by the chancellor, the COA said:
[¶16] … We also find error in the chancellor’s determination that Johnny’s actions of enrolling the land in government programs, planting trees, leasing the land for hunting purposes, constructing gates and roads, spraying the land, and paying taxes on the property constituted sufficient evidence to convert the land into a marital asset. See Hankins [v. Hankins,] 729 So.2d [1283]at 1286-87 (¶15); Ory [v. Ory], 936 So. 2d [405] at 411 (¶15). This Court has held that property-tax payments are traceable and do not transmute separate property into marital property. Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005) (quotation omitted) (“[T]he key to determining when there has been transmutation [from separate property to marital property] by commingling is whether the marital interests can be identified, i.e., can be traced.”). We also find no evidence submitted by Johnny to show how the land increased in value during his marriage to Claudia, or that an agreement existed between Claudia and Johnny that Johnny’s actions of managing the land would give him an interest in the property.
¶17. As acknowledged, nonmarital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson, 650 So. 2d at 1286. However, Claudia testified that she and Johnny never used the land for any family purposes. Significant to our analysis, we recognize that in the recent and similar case of Marter v. Marter, 95 So. 3d 733, 737-38 (¶¶14-16) (Miss. Ct. App. 2012), this Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to marital property by virtue of commingling.
¶18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005). The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2]. Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property — specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion.
That is a template you might be able to use in extricating your client’s property from the grasping tentacles of the family-use doctrine.
It’s still beyond me that activities like infrequent use of a beach condo, or fishing in a lake, or use of an antique chair, would convert separate property to marital, while plantation and maintenance would not. But, hey, I’m not complaining. Any exception to this rule is gratefully welcomed by me!
Parties in Adoptions
August 6, 2013 § Leave a comment
It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.
The statute requires that the following persons be joined by process or by consent to the adoption:
- the parent or parents, even though one or both are under twenty-one; or
- if both parents are dead, then any two adult kin of the child within the third degree; or
- if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
- the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or
The statute goes on to say that “In addition,” the following shall be made parties:
- person(s) having physical custody of the child, except foster parents via DHS.
- any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
- the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;
A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”
Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”
If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.
If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.
In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.
I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.
Two Birds with One MRCP 54(b) Stone
August 5, 2013 § Leave a comment
You’ve read here over and over that when the chancellor adjudicates fewer than all of the pending issues in a case, no direct appeal can be taken unless the judge certifies under MRCP 54(b) that there is no just reason to delay an appeal. In the absence of such a certification, the unhappy party’s only recourse is to file a petition with the MSSC for an interlocutory appeal.
The legal landscape is littered with the wreckage of appeals that unsuccessfully ignored the gravitational pull of R54(b), only to come crashing back to where they started.
The latest example — with a twist — is Estate of Drake: Drake v. Drake, decided by the COA July 30, 2013.
Benjamin Lee Drake sued his uncle, Bennie Larry Drake, alleging that Bennie Larry had unduly influenced Benjamin Lee’s father, before the father’s death, to change the beneficiary of his life insurance policy from Benjamin Lee to Bennie Larry, and to convey a parcel of land to him. Benjamin Lee asked the court to set aside both the change in beneficiary and the land conveyance.
In the course of the litigation, the chancellor dismissed the life insurance relief for failure of Benjamin Lee to file his complaint within three years of discovery of his uncle’s fraudulent conduct, as required in MCA 15-1-49 and 15-1-67.
The chancellor left the real property issue pending, which meant that he had resolved fewer than all of the pending issues. He did it with no MRCP 54(b) certification, and he made it clear on the record that his ruling was not final. Nonetheless, he told Benjamin Lee that, if he “wish[ed] to take an interlocutory appeal,” the “same was granted.”
Now here is where things get a tad peculiar.
Benjamin Lee did file a petition for an interlocutory appeal under MRAP 5. But he did not stop there. He also filed a separate, general notice of appeal under MRAP 4. So he had two simultaneous appeals from the same judgment.
As is the norm, the MRAP 4 case was assigned to the COA, and the MSSC kept the MRAP 5 case.
I’ll let the COA tell us what transpired from there:
¶6. “[F]ind[ing] that [Benjamin Lee] filed a notice of appeal from the same trial order,” the supreme court dismissed his separate petition for permission for an interlocutory appeal under Rule 5. At that point, recognizing the other appeal—the Rule 4 non-interlocutory appeal—was not from a final order, Bennie Larry filed two motions to dismiss the general appeal. But the supreme court denied these motions as “not well taken.”
¶7. The appeal has since been assigned to this court. But since the order under review is—as Judge Grant and both parties acknowledge—non-final, we lack jurisdiction to grant an interlocutory appeal and must dismiss. See Lundquist [v. Todd Constr., LLC], 75 So. 3d [606] at 608 [(Miss. 2006)](¶12).
Ergo … Presto Changeo, and … Voila! … two appeals are magically transformed into zero appeals. And the appellant is right back where he started.
The Starting Point
August 2, 2013 § 4 Comments
A pleasant young lawyer from far away in the exotic west of Mississippi dropped by my office last week on a probate matter. I signed her order and we visited briefly.
In the course of the conversation she complimented my work on this blog and said that she always finds something thought-provoking, even when she does not agree with my conclusions.
Ah. Mission accomplished.
As I have emphasized to anyone who will listen, this blog is not intended to be an authoratative reference work. It’s intended as a starting point. It’s a place where you may find a case or a concept that you might not have known about, and which will start you on your quest to put together the authority you might need to convince your sitting judge.
The posts here represent my best judgment about the law, but they are, above all, one judge’s opinion. You may disagree with my conclusions (and some commentors do). But if they provoke you to dig a little deeper, or to take what I have said and try to hammer it into a shape that will fit the predilections of your particular chancellor(s), then the blog is doing its job.
Welcome to the starting point.
Can You Ask for Rehearing, or to Alter or Amend a Judgment, Before There is a Judgment?
August 1, 2013 § 3 Comments
It’s fairly common in this court in a complicated case for me to issue an opinion in a case and direct that one of the attorneys prepare a judgment corresponding with it. The opinion is is issued on one date, and the judgment, as a result, is entered perhaps two weeks later.
It’s also fairly common for a lawyer, once the opinion has been issued, to file an MRCP 59 motion for rehearing in the interval between issuance of the opinion and entry of the judgment.
It does make a difference when you file your post-trial motion. A motion filed within 10 days of entry of the judgment is treated as a R59 motion, and one filed later than 10 days is treated as a R60 motion. City of Jackson v. Jackson Oaks Limited Partnership, 792 So.2d 983, 985 (Miss. 2001). Since the subject matter that may be addressed under each rule is markedly different, you can see that it makes quite a difference when your motion is filed.
So how is the court to treat your motion if you file it even before a judgment is entered? Is your motion a nullity?
The COA addressed the issue in Street v. Street, 936 So.2d 1002 (Miss. App. 2006), where the court stated:
¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.
¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).
¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.
Street was cited in the later case of Gary v. Gary, 84 So.3d 836 (Miss. App. 2012):
¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).
Thanks to attorney David L. Calder of the Child Advocacy Clinic at the University of Mississippi School of Law
MRCP 81 Under the Microscope … and a Poll
July 31, 2013 § 7 Comments
The Supreme Court’s Advisory Committee on Rules has set up a subcommittee of chancellors and a couple of appellate judges to study Rule 81 to determine whether it should be changed in any way, and, if so, how. The subcommittee will next meet August 9, 2013.
I am asking all readers of this blog to email me at lprimeaux@comcast.net with any suggestions you have about R81, no matter how minor or major, whether to keep it as is, or whether to change it in some fashion, or even to eliminate it. Or you may just want to make a comment about it. Any and all emails you send me will be shared with the subcommittee, and will be helpful in our task. Many of you do not comment here, and that’s okay, but I would urge you, please, to give me your input on this rule that has so much impact on our practice in chancery court.
WordPress has a poll feature. I’ve never used it, but I thought it might be fun to employ it as a gauge of legal opinion on R81. What say ye? I’ll make sure the subcommittee knows the results.
The Better Chancery Practice Blog 