Adverse Possession Refresher
July 24, 2013 § 6 Comments
The COA decision in Roberts v. Young’s Creek Investments, Inc., decided July 16, 2013, is yet another decision in the field of adverse possession that you should file away for future use the next time that you find yourself litigating that issue in chancery court.
All adverse possession cases are fact-driven, and this particular case is no exception. But it’s not the facts we’re interested in here. It’s the law. Here are some excerpts from the opinion that flesh out the legal requirements:
- ¶7 “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152-53 (Miss. 1992)). “We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Taylor v. Bell, 87 So. 3d 1134, 1137 (¶6) (Miss. Ct. App. 2012) (citing Buford v. Logue, 832 So. 2d 594, 600 (¶14) (Miss. Ct. App. 2002)). The chancellor must find that the plaintiffs proved each element of their claim by clear and convincing evidence. See Blackburn, 904 So. 2d at 136 (¶16).
- Claim of Ownership. ¶8. Under the claim-of-ownership element of adverse possession, the chancellor must determine whether the purported adverse possessor’s actions were sufficient to “fly a flag over the property” and put the actual owners on notice that the property was “being held under an adverse claim of ownership.” Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007) (citing Walker v. Murphree, 722 So. 2d 1277, 1281 (¶16) (Miss. Ct. App. 1998)). The Mississippi Supreme Court has stated:
When determining whether the [possessors] undertook possessory acts sufficient to support a claim of adverse possession, the chancellor must look to the quality and not the quantity of the acts indicative of possession. Possessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land, and adverse possession of wild or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.
Id. at (¶8) (internal quotations and citations omitted). In the present case, the chancellor determined that the land in dispute was wild land. Therefore, the claim of adverse possession of the 7.79 acres may be proved by a showing of possessory acts that would be insufficient to establish the claim if the 7.79 acres were improved and developed land.
- Hostile. ¶10. “Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So. 2d 817, 819-20 (Miss. 1992). “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.” Wicker v. Harvey, 937 So. 2d 983-94 (¶34) (Miss. Ct. App. 994 (¶34) (citing Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952)). The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession. Apperson, 950 So. 2d at 1118 (¶12).
- Open, Notorious, and Visible. ¶13. In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible. To satisfy this element, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”Wicker, 937 So. 2d at 994 (¶35) (quoting Blankinship, 605 So. 2d at 820).
- Continuous and Uninterrupted for a Period of Ten Years. ¶14. The plaintiff in an adverse-possession action must be in possession of the property for at least ten years.See Miss. Code Ann. § 15-1-13(1) (Rev. 2012). This period of possession must be continuous and uninterrupted. Id.
- Exclusive. ¶15. Exclusive possession means that the possessor “evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.”Wicker, 937 So. 2d at 995 (¶40) (quoting Rawls v. Parker, 602 So. 2d 1164, 1169 (Miss. 1992)) (internal quotations omitted). It does not mean that no one else can use the property.Apperson, 950 So. 2d at 1119 (¶15). “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)).
- Peaceful. ¶16. … Our supreme court has held that expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful. See Dieck v. Landry, 796 So. 2d 1004, 1009 (¶15) (Miss. 2001).
- Permissive Use. ¶17. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So. 3d 846, 849 (¶11) (Miss. Ct. App. 2012).
- Color of Title. ¶18. … “Color of title is an instrument of conveyance or a record which appears to convey title[,] but which in fact does not have that legal effect.” Houston v. U.S. Gypsum Co., 652 F.2d 467, 473 (5th Cir. Unit A Aug. 1981). “Thus, for example, an adverse possessor may claim [the property] under the color of title of a defect or imperfect instrument, even though his grantor or a predecessor was entirely without title or interest.”Id. at 474. … The chancellor considered color of title as if it were the first element of adverse possession. However, color of title is not an element of adverse possession. Furthermore, in order to possess land under color of title, there must be a defect or imperfection in the deed that, in effect, denies title or interest to the property.
A checklist for the elements adverse possession is here.
A COA decision by Judge Carlton analyzing adverse possession elements is here.
A COA decision by Judge Roberts discussing some of the adverse possession factors is here.
I was glad to see Judge Irving, for the COA, point out that color of title is not one of the elements of adverse possession. I hear it mentioned in nearly every adverse possession case I hear, and sometimes the contortions people go through to squeeze the facts into that element can be interesting to watch. Color of title may enter into the conversation when there is a defect in the deed conveying title that gives rise to the dispute, but it’s not one of the elements that the court must consider in every adverse possession case.
I don’t know about you, but when I practiced, I could not amass enough cases to help me understand those arcane phrases about unfurling flags and keeping them flying, and that an “enemy has invaded his domains,” and the planting of a standard of conquest, to make me feel comfortable. Every time I encountered an adverse possession case I had images of cavalry charges, bloody banners falling in the clash of arms, and castles stormed by medieval knights.
Termination in the Best Interest
July 23, 2013 § Leave a comment
The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.
In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:
¶9. Relevant to the case at hand, section 93-15-103(3) provides:
Grounds for termination of parental rights shall be based on one or more of the following factors:
….
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
. . . .
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .
The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …
The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:
[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .
It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.
Sibling and Step-parent Visitation
July 22, 2013 § 1 Comment
Unlike grandparent visitation, which became a part of Mississippi’s legal landscape by act of the legislature in 1983, sibling and step-parent visitation are matters that have not found their way into our body of law.
In the case of Scruggs v. Satterfiel, 693 So.2d 924 (Miss. 1997), the court was confronted with the question whether siblings have a right to visitation with each other.
Stacey Scruggs and her half-brother, Dustin Anthony “Tony” Satterfiel, were the children of Donna Sue Bowman, who died. After their mother’s death, Donna’s sister, Sandra Friend, got guardianship of Stacey, and she sought to keep the two children together in Meridian, but Tony’s natural father, who lived in Ackerman, was awarded his custody in chancery court, and Tony moved to Choctaw County with him.
At first, the parties arranged for visitation between the siblings, but when disputes and differences arose, Stacey, by Sandra, filed suit in Lauderdale county Chancery Court, seeking visitation with her brother. The chancellor dismissed the petition, finding that there was no legal basis to support an award of visitation in the case. Stacey appealed.
The MSSC affirmed the dismissal:
Stacey and Friend first assert that although no statutory provision has been made for visitation of siblings separated by divorcing parents, the circuit court [sic] erred in not ordering the parties to provide for the children to have regular visits with each other. In support of their argument, they look to case law in Mississippi and other jurisdictions which emphasizes the importance of considering the best interests of the child and preserving sibling relationships. Further, they turn to Miss.Code Ann. § 93-16-1, et seq., which provides for grandparent visitation. Saterfiel merely recites the chancellor’s specific findings made pursuant to the Litigation Accountability Act and asserts that because there is no Mississippi law on the subject of sibling visitation, the chancellor properly dismissed the case.
[1] [2] This Court, as Scruggs and Friend point out, has recognized the value of encouraging sibling relationships. In Sellers v. Sellers, 638 So.2d 481 (Miss.1994), which involved a custody dispute between an aunt and a natural parent, we clarified our position that “the presumption of awarding custody to a natural parent should prevail over any imperative regarding the separating of siblings.” Id. at 485. Nevertheless, quoting Mixon v. Bullard, 217 So.2d 28, we reiterated that:
The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. [Emphasis in original]
Sellers, 638 So.2d at 484, quoting Mixon, 217 So.2d at 30-31 (emphasis added). Despite our respect for the preservation of sibling bonds, however, it is not our prerogative to make new laws governing sibling visitation. That decision belongs to the legislature.
By statute, the legislature has extended third party visitation rights to grandparents when “such visitation rights would be in the best interest of the child.” Miss.Code Ann. § 93-16-5. While, ordinarily, the exercise of grandparent visitation rights might serve as a catalyst for preserving the relationship between half-siblings separated by the death of the common parent, in the case sub judice, the only known maternal grandparent died several months before the children’s mother’s death. We recognize, as Scruggs and Friend argue, that some jurisdictions, in the absence of any statutory imperative, have made provision for sibling visitation when the children’s best interests so dictate. See, e.g. In re Interest of Daniel W., 3 Neb.App. 630, 640, 529 N.W.2d 548, 555 (1995)(as distinguished from grandparent’s “right” to visitation which is derived through natural parent’s parental rights, “siblings possess the natural, inherent and inalienable right to visit with each other.” quoting L. v. G., 203 N.J.Super. 385, 497 A.2d 215, 222 (1985)); In re Custody of D.M.M., 137 Wis.2d 375, 387-388, 404 N.W.2d 530, 535 (1987)(statutes providing visitation to family members are intended to supplement, not supplant, common law rights). We are not so inclined. Rather, we invite the legislature to consider the matter and to expand the rights set forth in § 93-16-5 to siblings or other third parties as it sees fit.
The legislature has not RSVP’d. Until it does, it appears there will be no sibling visitation in Mississippi.
In the case of Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009), in a procedurally peculiar case, the stepfather, Jackie Ray Pruitt, had obtained an order of visitation with his stepchildren in a habeas corpus proceeding before one chancellor. When he sought to enforce the order before a successor chancellor, the natural father, Richard Payne, objected, and the second judge struck down and dismissed the prior order, noting that the stepfather had no right cognizable under Mississippi law to visitation. The COA affirmed, at page 811:
In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that their biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number 06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.
The only visitation rights in derogation of the common law that have been established in Mississippi are visitation rights on the part of grandparents. That’s the way it will stand unless and until the legislature sees fit to expand the scope of third-party visitation.
Grandparent Visitation: How Much?
July 18, 2013 § 2 Comments
In most cases, grandparent visitation should not be as comprehensive or extensive as that of natural parents. Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).
But just what amount of visitation is reasonable for grandparents? Here is a collection of cases addressing the question:
- Settle v. Galloway, 682 So.2d 1032 (Miss. 1996). The MSSC affirmed an award of alternating weekends, plus Easter and Thanksgiving in alternating years. The court pointed out that grandparent visitation on alternating weekends would probably be excessive in the usual case, but that it was appropriate in this particular case because the non-custodial parent was in the military and could not exercise his usual visitation.
- Martin v. Coop, 693 So.2d 912 (Miss. 1997). The MSSC reversed an award of 86 days in even-numbered years, and 81 days in odd-numbered years. The court found that “Grandparents do not stand in lieu of or in the shoes of the deceased parent,” and “[V]isitation granted to grandparents should not be the equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id., at 916.
- Zeman v. Stanford, 789 So.2d 798 (Miss. 2001). In a case where the non-custodial parent was incarcerated, and was unable to exercise any visitation, the MSSC affirmed a chancellor’s award of one weekend per month, finding that the situation was analogous to the Settle case, supra.
- Woodell v. Parker, 860 So.2d 781 (Miss. 2003). Affirmed the chancellor’s award of: one weekend per month; every other Spring Break/Easter holiday; the Friday and Saturday following Thanksgiving; the five days following Christmas; two weeks during the summer; and regular telephone and “postal” access. Id., at 790.
- T.T.W. v. C.C. and J.C., 839 So.2d 501 (Miss. 2003). The court remanded for a full consideration of the Martin factors in a case where the parents resisted visitation due to the grandparents’ interference with parental decisions and discipline. Interestingly, the court suggested that, “on remand the chancellor might consider options other than a wholesale grant or denial of visitation,” and pointed out that supervised visitation might alleviate many of the problems that had arisen. Id., at 506.
Remember that the amount and extent of grandparent visitation may only be determined by the trial court after application of the Martin v. Coop factors.
Visitation may be modified “for cause.” MCA 93-16-5; Rose v. Upshaw, 69 So.3d 74, 79 (Miss. App. 2011).
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]
Rule 81 Confounded
July 17, 2013 § 10 Comments
This is my 40th year in the law. The past 6 1/2 years have been on the bench, dealing exclusively with chancery matters. Before that, 33 years in practice, primarily in chancery. In my 39 1/2 years of experience, 31 have been under the MRCP.
Until yesterday, with one exception, have I ever seen MRCP 81 applied as it was yesterday in Curry v. Frazier, decided by the COA.
The one exception is Pearson v. Browning, decided last Fall.
If these two cases are good law, and they are not anomalous, you will have to drastically change the way you do process in counterclaims in chancery court. In my opinion, together both cases say that once the plaintiff has submitted himself to the jurisdiction of the court by filing a pleading, you must still get jurisdiction by R81 process over him in order to pursue your counterclaim. Yes, that’s jurisdiction times two.
Other chancellors I have talked to are scratching their heads. This is a new way to go at jurisdiction in chancery. Or is it? Has it been your experience that R81 works this way?
I wonder whether the COA has an agenda here.
Recovering Lost Custody
July 16, 2013 § 4 Comments
We talked last week about the natural parent presumption for custody, and how it may be lost.
Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?
In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:
“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).
The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.
That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.
But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.
As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]
A Shortcut for Attorney’s Fees?
July 15, 2013 § 3 Comments
We’ve talked here before about what it takes to make a record on attorney’s fees that will withstand scrutiny on appeal. Here’s a link to one such post among many. As I’ve said, it should be a subject of vital interest to attorneys who spend any time in court.
Did you know that there is actually a shortcut to proving attorney’s fees?
Here it is … MCA 9-1-41:
In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.
That would seem to be pretty clear, then. No proof as to reasonableness is required, and the court makes its award “based on the information already before it and the court’s own opinion based on experience and observation …, ” with the proviso that you can put in other evidence to support the award.
Does this mean that the McKee factors need not be considered? Not necessarily. In the case of Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 54 (Miss. 1998), in a case dealing with attorney’s fees on an open account, which has its own particular body of law, the MSSC said, “This does not mean these factors are not relevant, just that proof of them is not required before a court awards attorney fees. This Court does not leave the reasonableness of an award for attorneys’ fees to the arbitrary discretion of the trial court.”
I think you can take from the Par Industries case that the appellate courts require the trial judge to flesh out how she arrived at a determination of reasonableness, and how the court calculated what the fee will be. In other words, a blanket award like “Plaintiff is awarded $5,000, which the court deems reasonable,” will not do the job. But an award that spells out what the court considered in making its decision will (or should).
Just How Unfit Does a Parent Have to Be to Lose the Natural Parent Presumption?
July 11, 2013 § Leave a comment
We’ve talked here before about the natural parent presumption, and how it can be rebutted, or lost, by the natural parent’s own unsuitable conduct. The presumption is rebutted by a “clear showing” of (a) abandonment, or (b) immoral conduct by the parent that is detrimental to the child, or (c) mental or other unfitness.
Here is a collection of cases where the appellate courts have found that parental conduct rebutted the presumption:
- White v. Thompson, 569 So.2d 1181 (Miss. 1990). Children not adequately supervised, not adequately clothed or fed, with a resulting deleterious effect on their health, mother living in intimate relationship with another woman.
- E.J.M. v. A.J.M., 846 So.2d 289 (Miss. App. 2003). Mother had a significant history of mental illness, and in a recent bout of depression could not recall where the child was, and the child had been abused while in her care.
- In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003). Drug and alcohol abuse. The 6-year-old child believed his father had killed his mother and brother with a baseball bat, based on a horror movie that the father had rented and watched with the child. Father: charged with drunken driving with child in the car; exposed child to sexual situations involving married women; threatened and abused child’s mother; and never reported his live-in girlfriend and her 5-month-old child missing after they were killed.
- Loomis v. Bugg, 872 So.2d 694 (Miss. App. 2004). Use of illegal narcotics for an extended period of time. Mother left the child with relatives for more than half the time after death of the natural father.
- Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992). Mother lived with several different men without benefit of marriage while she had the child, was arrested numerous times on drug-related charges, used illegal drugs and had paraphernalia in her apartment that was used to produce crack cocaine.
So what happens when the judge finds that the parent is presently unfit? Does that trigger an Albright analysis to gauge the comparative merits of the petitioning non-parents vs the parents? Not necessarily. In Lucas v. Hendrix, 92 So.3d 699 (Miss. App. 2012), the COA concluded that, upon a finding of parental unfitness, no further inquiry is necessary, the implication being that a parent who is presently unfit can not be awarded custody.
[This information is based on a presentation by attorney David Bridges to the Conference of Chancery Judges in April, 2013]
