To Err is Human … to Fix it is the Chancellor’s Job
June 19, 2013 § Leave a comment
Shelly Kelly wanted to rent a house in Greenville. She approached Harrison Barry, who owned some rental property. Instead of a rental, they struck a deal for Shelly to buy some property for $5,000.
Barry asked Edward Lueckenbach, a Greenville attorney, to prepare the deed, but he was not asked to do a title opinion. The attorney went to the Washington County Courthouse, where he got the legal description for “Lots 51 and 52” in Shelton Subdivision, and he prepared a warranty deed.
Kelly bought her property and moved in at 330 Lake Street.
Barry renovated the neighboring property at 332 Lake Street, converting it from a single-family dwelling into a boarding house. He paid for air-conditioning, painting, and plumbing work. He installed a new water heater, furnace, closet, door locks, and doors, including paying for all the necessary materials. Barry allowed Kelly to screen the tenants, based on a complaint she made about noise, and Kelly collected the rent, which she turned over to Barry.
When Kelly received a tax bill for the 332 property, she called Barry to inquire, and he went to the attorney’s office, who advised him that the Lots 51 and 52 on the deed were for two different dwelling houses, one at 330, and one at 332. The attorney contacted Kelly, who refused to sign a corrective quitclaim deed. Barry filed suit to have the deed reformed to reflect the actual intent of the parties, and the chancellor ruled in Barry’s favor. Kelly appealed.
In Kelly v. Barry, decided May 21, 2013, the COA affirmed. Judge Roberts’ opinion sets out the basis for the ruling:
¶12. “A deed may be reformed where it is shown to [have] result[ed] from the mutual mistake of the parties in contracting for it.” Olive [v. McNeal], 47 So. 3d at 739 (¶12) (citing Brown v. Chapman, 809 So. 2d 772, 774 (¶9) (Miss. Ct. App. 2002)). As stated in Brown:
The law permits reformation of instruments to reflect the true intention of the parties when . . . the erroneous part of the contract is shown to have occurred by a mutual mistake, i.e., the party seeking relief is able to establish to the court’s satisfaction that both parties intended something other than what is reflected in the instrument in question[.]
Brown, 809 So. 2d at 774 (¶9). “The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt.” Olive, 47 So. 3d at 739-40 (¶13) (citing McCoy v. McCoy, 611 So. 2d 957, 961 (Miss. 1992)).
¶13. Kelly notes that in Olive, this Court affirmed a chancellor’s decision that a litigant had failed to demonstrate mutual mistake because: (1) the document at issue in Olive was titled as a warranty deed; (2) the grantor was literate; (3) the grantor had several opportunities to review the warranty deed; (4) the grantor had some experience in real-estate transactions; and (4) the grantor had an opportunity to discuss the warranty deed with his attorney. Olive, 47 So. 3d at 740 (¶17). Kelly argues that the circumstances in this case are similar to the circumstances in Olive. We disagree.
¶14. Without question, the document at issue in this case was styled as a warranty deed. However, the property description merely indicated that Kelly was acquiring “Lots 51 & 52.” The property description does not indicate that Barry was selling Kelly 330 Lake Street and 332 Lake Street. In preparing the warranty deed, Lueckenbach could have mistakenly believed that “Lots 51 & 52” both applied to a single street address. Barry testified that he did not read the property description. Even if he had, no portion of the property description would have placed him on notice that he was mistakenly transferring title of two separate street addresses.
¶15. Furthermore, Barry’s behavior after the transaction indicated that he believed he never transferred title to 332 Lake Street. He paid for substantial repairs to 332 Lake Street and converted it to a boarding house. And he continued to pay the utility bills, taxes, and insurance premiums that related to the property.
And Kelly collected the rent for Barry and turned it over to him.
Who among us has not had a similar experience? I know I had a scarily similar experience once in Neshoba County where I would have faced litigation at my expense to correct a misdeeded parcel, but for the intervention of a young attorney with a sense of honor and equity, who prevailed upon his client to agree to fix the screw-up that had been the mutual error of two attorneys who put haste ahead of accuracy in drafting the judgment and deeds necessary to settle an estate.
Cases like this one are at the very core of what chancery courts are for.
Oops … and a Further Oops in a Partition Suit
June 18, 2013 § 2 Comments
Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.
That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.
Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.
Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.
The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.
After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.
[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]
After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.
The chancellor signed the agreed judgment. No one appealed.
When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).
The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.
So, did the COA’s decision finally untangle the knot? Well, in a word, no.
Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor:
¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.
So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.
Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.
Yes, This is the 12th Chancery Court District …
June 17, 2013 § 8 Comments
Welcome to the blog’s new look and new name.
The content will continue as it has been, but in what I hope is a brighter, more readable format.
And the new name more accurately reflects what the blog is all about: improving Mississippi chancery court practice.
The URL is unchanged, so you will not have to adjust your bookmarks.
Enjoy.
THREE YEARS ON … AND GOING FORWARD
June 14, 2013 § 6 Comments
Three Years …
Today, June 14, is the third anniversary of this blog.
My rather modest, original purpose was to have a place where I could post helpful information for lawyers who came through my court. I anticipated that the lawyers in this area would tap into it, and that it would improve their performance, and mine in the process. If 5-10 lawyers a day would view it and find something useful, that would be good, and I could say to myself, “Mission accomplished.”
Over time, though, the scope of the blog became far more expansive than I had envisioned. Where I had initially intended to talk about how we do things in District 12, I found that more and more posts dealt generally with chancery practice.
I learned that lawyers in other parts of the state began to find a resource here, not just a court-district web site. Word had spread and lawyers across the state discovered the blog. Some CLE presenters were citing the blog as a resource. More than one law professor pointed their students to it on particular points (the spike in viewership at law school exam time is big). Some judges began referring lawyers to it as a source to help get their probate matters straight, or to clean up their trial practice. In time, viewership steadily increased, and in all parts of Mississippi (and some other states, I might add). I regularly heard from lawyers passing through that they and their colleagues were using what they found here.
Today, much to my astonishment and delight, I get between 250 and 350 different visitors each weekday, and have 83 more following via email or otherwise. There have been 887 posts and 1,490 comments.
I am gratified that I have been able to be of some help. My hope is that everyone can find something here that will improve their chancery practice in even a small way. If nothing else, lawyers can take what I say as a modest starting point to improvise, create and come up with even better ways to do things. That’s what I am aiming for: Better Chancery Practice.
When I set out I promised myself that I would blog for a year, five days a week, and, if at the end of that time I ran out of things to say, or it proved too much of a chore, I would find some other project. Well, I have never yet concluded that I ran out of things to say (keep your opinions to yourself), and this has not yet proven to be too much of a chore. Thus, I continued on, and here I am today, and for yet a while.
Going Forward …
So how long will I keep this up? Well, I imagine I will as long as I feel like I have not run out of things to say, and it doesn’t prove too much of a chore. I might add, though, that every time I get feedback that the blog has helped a lawyer or judge in some way, it recharges my batteries and keeps me going further.
I’ve concluded, though, that I could improve some things around here. I want the appearance to be brighter and more appealing. I want to shed the impression that this is a local-court-district web site. And I want to help readers re-discover some useful info that may have become buried over time.
So, here are some coming changes:
- Beginning Monday, June 17, 2013, the blog will have an entirely new look (sorry, Anderson) that I am confident you will find to be crisper, more readable, and brighter.
- The name will change to reflect the broader scope of the blog. I want to get away from the idea implied by the name that this is only a court-district web site.
- The URL will not change. You will still find this at www.chancery12.wordpress.com.
- Older posts will be reprised from time to time to help those who have not been around from day one to discover helpful posts from the past. At 887 posts, it can be hard to sift through that haystack.
There you have it. It’s been fun thanks to all of you. And as long as it continues to be fun, I’ll be here.
Ciao for niao.
“FAMILY USE DOCTRINE” HITS A WALL
June 13, 2013 § 1 Comment
I confess that I am no fan of the so-called “Family Use Doctrine.” That’s the concept that, simply because a separate asset was used by the household, its character changes from separate to marital, in whole or in part. I’ve voiced my concern about it here before.
In its latest manifestation, the COA reversed the chancellor’s ruling that Ceicle Palmer was entitled to one-half of the marital estate, which the chancellor adjudged to include a home separately owned prior to the marriage by her husband, Roland. The parties had lived in the home together, and Ceicle had invested some $2,000 in it. The effect of the judge’s ruling, then, was to award Ceicle half of the home equity, which amounted to more than $30,000. Roland appealed.
In the case of Palmer v. Palmer, decided May 7, 2013, the COA reversed and remanded. At ¶ 9 the opinion by Judge Irving states that, “We agree with the chancellor’s finding that the home is marital property.” That’s the “Family Use Doctrine” clicking into place. The court went on to say, however:
¶10. We have held that “[e]quitable distribution does not mean equal distribution,” and there is no requirement that each spouse must receive half of an interest in the property. Jenkins v. Jenkins, 67 So. 3d 5, 11 (¶13) (Miss. Ct. App. 2011) (quoting Seymour v. Seymour, 960 So. 2d 513, 519 (¶15) (Miss. Ct. App. 2006)). “[E]quitable distribution [is] a fair division of marital property based on the facts of each case.” Seymour, 960 So. 2d at 519 (¶15). We point out that the chancellor did not specifically award Ceicle a fifty percent interest in the marital home. Rather, he awarded her a fifty percent interest in the marital estate. However, the effect of awarding her fifty percent of the marital estate was to award her a fifty percent interest in the marital home. In reaching his decision, the chancellor noted that there was no evidence that the home had appreciated in value during the course of the marriage and that Ceicle’s only financial contribution to the home was $2,000 for putting in some carpet and tiling the kitchen floor. At one point, the chancellor stated that there was no evidence that the carpet and tile had resulted in an appreciation in the value of the home. However, the chancellor later said that Ceicle had made $2,000 worth of improvements.
¶11. We acknowledge the clarity in our law—that equitable distribution is committed to the sound discretion of the chancellor. However, we, as an appellate court, have oversight responsibility, and if we could never reverse a chancellor’s decision regarding equitable distribution, our oversight responsibility would be reduced to the ministerial act of simply rubber-stamping a chancellor’s decision. While Ceicle did pay $2,000 for new flooring, it is difficult to conclude that her meager financial contribution, along with her domestic contributions to the relationship, warrants a fifty percent interest in the marital home. The house was already paid for before Ceicle and Roland married. The record reflects that Roland also made domestic contributions to the relationship in addition to providing the home, without any compensation or contribution from Ceicle. The record also reflects that Roland has no money from any source other than his meager Social Security check. He would be forced to sell the home in order to pay Ceicle the $31,502.50 that the chancellor awarded her. At that point, he would be homeless or would have to incur additional expenses for lodging. Even the chancellor recognized this fact, as he specifically found [as much].
The court went on to consider the parties’ relative financial conditions and health, concluding that the equities should be adjusted to give Roland the greater part of the marital estate.
There was a dissent critical of the majority opinion, which was addressed by the majority as follows:
¶13. The dissent apparently misreads the focus of our finding that the chancellor erred in dividing the marital estate, as the dissent states, in paragraph 21, that “Mississippi law does not require a spouse to have made a direct economic contribution to an asset to be awarded an interest.” Nothing in our opinion suggests that our law requires such. We do not find error with the chancellor’s judgment because it awarded Ceicle what is tantamount to a fifty percent interest in an asset that she made no contribution to acquiring. We have discussed the facts surrounding the acquisition of the marital home because those facts are relevant to the greater issue of whether there is substantial evidence to support the chancellor’s finding that a fifty-fifty division of the marital estate is equitable. It is only one piece of the overall equation, but an important piece because the marital home constitutes more than fifty percent of the total value of the marital estate. To be clear, our decision rests upon a consideration of the totality of the factual circumstances, including Roland’s health versus Ceicle’s, Roland’s post-divorce financial situation, and especially the chancellor’s finding and recognition that:
If this court were to direct that Roland Palmer sell the marital home, he would net some cash, but would be forced to either rent or buy and would rapidly deplete any funds realized from the sale of the home. Based upon his current income, he would be unable to afford to either rent or buy.
Despite this finding, the chancellor, in effect, concluded that it was equitable to thrust Roland into the very situation that he specifically found was inequitable and which would leave Roland in dire straits.
It’s hard to reconcile this case with Rhodes v. Rhodes, the family-use case I whined about in that prior post. In Rhodes, the COA held that, among several other factors, the household use of a beach condo a few weeks a year for the several years of the brief marriage converted it to marital poperty. That was viewed as equitable by the COA.
I have joked that our jursisprudence is reaching biblical proportions, meaning that one can now find authority to support nearly every possible position, and even several cases on each opposite side of an issue.
Is this Palmer case an anomaly, an outlier? We’ll see.
LAWYERS AS WITNESSES
June 12, 2013 § 5 Comments
On two occasions this year I have seen lawyers take the witness stand and, with absolutley no objection from the other side — not even a quiver of objection — have proceeded to testify as to the merits of the matter at hand. In neither case was the testimony dispositive.
That flies in the face of my preconceived notion that lawyers who are representing a party in a case are not supposed to testify in that case, except as to attorney’s fees and, possibly purely procedural matters.
So I checked Jeffrey Jackson and Donald Campbell’s excellent Professional Responsibility for Mississippi Lawyers, MLI Press, 2010, and — voila! — here is what they say at § 25: 8, p. 25-10:
At trial, a lawyer is an advocate, and not a witness. A lawyer who is in the position of being a material witness would usually be disqualified from representation under [Mississippi Rules of Professional Conduct] Rule 3.7, which seeks to avoid jury confusion over the lawyer’s advocate and witness roles. If a lawyer acts as an advocate, she should not assert personal knowledge of facts at trial. Such assertions of personal knowledge are prohibited under [Mississippi Rules of Professional Conduct] Rule 3.4(e) except when the lawyer is otherwise properly testifying as a witness. [Footnote omitted]
The text alludes to juries, but I think it is applicable also to bench trials also where the lawyer takes the witness stand and acts as a material witness. The lawyer intends for the testimony to be taken as substantive and given probative weight, when the witness was — or should have been — disqualified from testifying in the first place.
The official Comment to Rule 3.7 says that, “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” The Comment adds that the opposing party has an objection whenever the combination of roles may prejudice that party’s rights in the litigation.
The provision in Rule 3.7 that lawyers who are material (the word “necessary” is used in the rule) witnesses are disqualified has the obvious purpose of prohibiting lawyers from avoiding the witness stand by taking cover behind the advocate’s role and its prohibition against testifying.
With the exception of attorney’s fees, I don’t think it’s a good idea for lawyers in a representative capacity to take the witness stand.
THE PRICE OF ADMISSION
June 11, 2013 § 5 Comments
We all know that MRCP 36 dealing with Requests for Admission (RFA) has some sharp teeth that can inflict painful, if not fatal, wounds on your case. R36(b) says that any matter admitted is “conclusively admitted,” unless the court allows withdrawal or amendment of the response.
The scope and dire effect of that “conclusively admitted” language was explored in the COA case of Aydelott v. Quartaro, decided June 4, 2013. The case at trial was one for grandparent visitation, based on a claim that the grandparents had established the statutorily-required relationship with the grandchildren and had provided support. The chancellor allowed the Quartaros to testify contrary to their admissions, which had been neither withdrawn or amended.
So, was the chancellor’s ruling an inconsequential procedural matter not rising to the level of error, or did it warrant reversal? Here’s how Judge Maxwell answered the question:
¶16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quartaros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters—and thus had never established a viable relationship—had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss. 2009); Boyd v. Boyd, 83 So. 3d 409, 416 (¶21) (Miss. Ct. App. 2011).
¶17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (¶5) (Miss. Ct. App. 2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially—by allowing Shassidy’s mobile home to be placed on their land—and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions—and is silent about how and when the Quartaros could move for withdrawal or amendment—the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So. 3d at 416-17 (¶¶21-22).
¶18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So. 2d at 859 (¶¶8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So. 2d at 859 (¶9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So. 2d at 859 (¶¶8-9).
¶19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” Leverock, 23 So. 3d at 432 (¶28) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error—the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.
The decision went on to say that the mere thwarted desire to establish a relationship is not enough.
This case makes clear that inattention to timely supplementation of your discovery can cost your client big, even to the extent of getting a win turned on its head. If in trial preparation or any point before you believe the prior answers to RFA’s are incorrect and too restrictive, move for leave to amend.
Also, pardon me for sounding harsh, but I think the responses to the RFA’s might have been too “cute.” For example, intead of admitting that they had not supported the children because the mother threw things away, I think it would have been quite accurate and truthful to deny it something like this: “Denied as stated. We have bought numerous things for the children, but our daughter has thrown them away.” Sometimes, in that urge to strike back, clients say things that come back to haunt them. That’s what it looks like happened here.
If you try any grandparent visitation cases, you need to be fully aware of the two major categories of cases, as well as the Martin v. Coop factors. Merely because you have grandparents who are willing to pay you a retainer to try for visitation does not mean they have a viable case.
SEPARATION ANXIETY
June 10, 2013 § Leave a comment
Separate maintenance is that peculiar neverland of the marriage where one is neither quite in a marital relationship, nor quite out of a marital relationship. It’s like limbo.
We are all familiar with the old maxim that, “Separate maintenance is a judicial command to resume cohabitation or to provide support.” The focus in most separate maintenance trials is almost always on the (usually) husband’s adamant refusal to return home to the wife, and the wife’s need for financial help.
That was the focus of the chancellor in the case of Paul Jackson v. Linda Jackson. After the trial, the chancellor noted Paul’s testimony that he had no intention of returning to the marital relationship, primarily due to a subsequent relationship, and accordingly zapped Paul with $600 a month, use of a house and land, proceeds of an income-tax refund check, and “other relief.”
Paul appealed, and in the case of Jackson v. Jackson, handed down from the COA on May 28, 2013, the appellate court reversed. Paul’s complaints on appeal were several-fold, but the one that hit the bulls-eye is in the following language from Judge Carlton’s opinion:
¶11. The factual findings of the chancellor are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error. Fore v. Fore, 109 So. 3d 137, 138 (¶6) (Miss. Ct. App. 2013); see also Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss. 1977) (finding that where the wife’s course of conduct was a material factor in causing the separation at least equal to, if not great than, that of the husband, the decree of separate maintenance was erroneous); Tackett v. Tackett, 967 So. 2d 1264, 1266-67 (¶¶8-10) (Miss. Ct. App. 2007) (finding that the record supported the award of separate maintenance since evidence showed the wife’s conduct did not materially contribute to the material separation). Additionally and significant to our review of this case, the power of the court to grant the equitable relief of separate maintenance must be based on the requisites of a separation without material fault of the petitioner or requesting spouse and willful abandonment of her by the husband with refusal to support her. See Rodgers, 349 So. 2d at 541; Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993); Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008). [Emphasis added]
All three prongs of separate maintenance must be present in order to prevail for the claiming party. There must be:
- Separation without material fault on the part of the requesting party, and
- Willful abandonment by the other party, and
- Refusal to support.
Until all three are met, there is no entitlement to separate maintenance.
In Jackson, the COA held that the chancellor had slid past the evidence of Linda’s fault, which the COA deemed considerable as well as material, and concentrated on Paul’s own misconduct and refusal to support. The COA found that Linda had failed to prove that she was without material fault:
¶16. We acknowledge that “[s]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010). Moreover, Linda bore the burden of proof to show more than Paul’s marital misconduct. “The granting of separate maintenance is premised upon the existence of a valid marriage contract” and premised upon a showing that “there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. [Fn 4] An award of separate maintenance arises from equitable principles, and equity requires that, as the requesting spouse, Linda show no significant conduct on her part negatively impacted the marriage or contributed to the separation. Linda failed to meet the evidentiary burden required to sustain a separate-maintenance award. Linda also failed in her burden to show that Paul refused to support her, as reflected in the omissions in her Rule 8.05 financial statement. Linda failed to disclose her free residence, real-property remainder interest, business interests, and other assets. We now turn to address jurisprudence applicable to separate maintenance and to the facts of this case.
Fn 4. See also Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1989).
¶17. In Rodgers [v. Rodgers], 349 So. 2d at 541, the Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment of her with refusal to provide support to her. [Fn 5] Rodgers, 349 So. 2d at 541. The Rodgers court explained that these two requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id. The court further explained that the law applicable to separate-maintenance awards includes no requirement that the requesting spouse be blameless. Id.
Fn 5. The application of equal-protection principles allows either spouse to seek the5 equitable remedy of separate maintenance. However, since Linda is the petitioner in this case claiming the entitlement, this opinion refers to the wife as the petitioner in its analysis.
¶18. As previously discussed, our jurisprudence establishes that in order for the court to equitably award separate maintenance, the misconduct of the abandoned spouse must not have materially contributed to the separation. See id. In Rodgers, the supreme court provided guidance explaining that the requesting spouse need not be blameless or without any fault before invoking the equity required for separate maintenance. Id. The supreme court explained that where a wife’s course of conduct is a material factor in the separation at least equal to, if not greater than, that of the husband, the decree of separate maintenance is erroneous. Id. The supreme court in Rodgers found such an award erroneous since the power of the chancery court to grant separate maintenance is based on a separation without fault on the wife’s part and willful abandonment of her by the husband with a refusal by him to support her. Id.
It’s simply not enough to show that the (in this case) husband has departed and won’t come home. The burden is on the requesting party to show that she was not materially at fault, and that he is refusing support. Without all three elements, the case fails.
IF ADULT DISABLED CHILDREN ARE TO RECEIVE POST-MAJORITY SUPPORT, THE LEGISLATURE WILL HAVE TO DO IT
June 7, 2013 § 6 Comments
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
A wrinkle in this case was that the case was brought as a modification action in chancery court by the mother acting as conservator of the child. The chancellor ruled that a modification action was not the proper vehicle, but he went beyond that and ruled that he had no authority to impose a post-majority obligation on the father. The supreme court affirmed on both points.
This is an issue that lawyers and judges have encountered and speculated about for many years, as long as I have been practicing. For a while the speculation was that the supreme court, given just the right set of facts, would impose that duty.
Yesterday’s decision would appear to lay that speculation to rest. If there is no common-law authority to draw on, and the court holds that there is a separation-of-powers impediment, that would be conclusive, in my opinion.
Justice King dissented, taking the position that the legislature has, indeed, given the courts all the authority they need in existing legislation. You can read his dissent and form your own conclusions. Dickinson, Kitchens, and Chandler joined his dissent.
There is an interesting footnote, number 5, on the eighth page of the opinion (¶ 13). Here’s the text:
The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:
The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month . . . .
Miss. Code Ann. § 43-31-28 (Rev. 2004) (emphasis added). We have held that “this statutory liability can only be enforced in the manner provided by statute.” Wright[et al. v. Coleman], [137 Miss. 699,] 102 So. [774] at 777 [(1925)].
Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss. Code Ann. § 43-19-33(3) (Rev. 2004) (“in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).
You might have known about those two provisions. I did not.
The issue of parental support for adult disabled children has many facets and ramifications. If it is to be addressed at all, it appears that the Mississippi Legislature, with all of its institutional wisdom and foresight, will be the body to do it.
D-DAY
June 6, 2013 § 14 Comments
June 6, 1944 — D-Day — was, in my opinion, the most significant day of the twentieth century. It’s the day that combined Allied forces broke into fortress Europe and began the relentless grinding down of monster Hitler’s war-and-repression machine. It was a most climactic day among many climactic days in WWII.
It was an Allied victory, but at a great cost. Estimates vary, but it is generally accepted that the Allies lost some 10-12,000 men in the assault, against 5-9,000 for the Germans, who had the advantage early on of a strong defensive position.
It’s sobering to contemplate what the intervening 69 years would have been like had the invasion failed. The Allies may have had to sue for peace, leaving France, Czechoslovakia, Poland, Austria, and the rest of Europe under Hitler’s heel. No doubt more war would have ensued after Hitler disentangled himself from war in the Caucasus and rebuilt his strength. That he would have been able to approach world domination is not inconceivable.
The brave men who survived D-Day are dying off. Most were in their young twenties then, which means that they are in the 90’s or near to now.
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