ANOTHER REVENANT CASE

June 5, 2013 § 1 Comment

The COA case of Gordon v. Gordon, decided May 21, 2013, is the latest in that ever-growing body of jurisprudence that I refer to as “Zombie Law” (hereinafter “ZL”). These are cases that appear to have been laid to their final rest by the chancellor’s ruling, often with the full agreement of both parties, only to have them rise from their grave later via post-judgment issues and appeals.

Wanda and Charles Gordon entered into a statutory consent to divorce agreeing that the one issue for adjudication by the court was, “Whether or not [Charles] is entitled to receive money from [Wanda].” The COA opinion also states that the crux of the dispute was whether Wanda had misappropriated some $46,000 of marital funds, although it is unclear from the opinion whether that issue was expressly set out in the consent.

The chancellor heard the testimony on November 8, 2004, and concluded that there was inadequate information upon which to base an adjudication regarding the contested issue. On December 17, 2004, he entered a judgment that the trial be continued to a later date for more substantial evidence on the contested issue, and he said that he would ” … go ahead and grant the divorce …, just so that [Charles and Wanda] can get that out of the way.” The judgment stated that the chancellor would retain “jurisdiction to adjudicate those matters pertaining to the division of property and support and maintenance of the one remaining minor child of the parties” [Emphasis added]. The latter language was not included in the original consent.

On January 31, 2005, Wanda filed a motion to set aside the divorce judgment. The hearing on the motion was not held until November 16, 2010. The chancellor did set aside the divorce, and, in response to Charles’s motion to reinstate it, said that he would if Charles would withdraw his claim for the $46,000, which he did, at which point the chancellor entered his judgment of divorce nunc pro tunc to December 17, 2004.    

Wanda appealed, claiming that the chancellor erred by not dividing the marital estate, including military retirement, and adjudicating child support and custody. The COA affirmed.

Here are a few points from the opinion:

  • Wanda’s argument rests heavily on the language of the consent statute, MCA 93-5-2, which states that “No divorce shall be granted … until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been adjudicated by the court …” She took the position that the chancellor had to address those statutory issues before adjudicating the divorce. The COA did not buy her argument. Notice the language of the statute, ” … raised by the pleadings …” In context, that would appear to apply to the consent, since the consent supplants the original pleadings. But be aware that the MSSC in McNeese v. McNeese, handed down April 25, 2013, held in yet another ZL case that, “The consent agreement at issue is not a motion, pleading, or a consent judgment …” Not sure how those two principles fit together, but in this case the COA did not agree with Wanda’s position.
  • The chancellor was right to set aside the divorce. The statute clearly states that no divorce may be granted until all of the contested issues have been adjudicated.
  • Wanda also claimed that the chancellor was in error in not ordering Charles to pay child support for her great-nephew, of whom she had custody per a S. Carolina judgment. Three guesses how that turned out.
  • I applaud the chancellor for refusing to go ahead and adjudicate the contested issue on scant, insufficient evidence.

If you want the chancellor to address a particular issue via consent, be sure that the statement of the contested issue clearly states what the judge is expected to decide. I am not convinced that the language, “Whether or not [Charles] is entitled to receive money from [Wanda]” does the job.

And a final lesson from this latest ZL case: It’s never over any more until it’s over, and even then it may not yet be over. The days of parties and lawyers sticking to their agreements and being held bound by them is sadly past, now merely a quaint reminder of the past like buggy whips and quill pens.

JUDGES AND ELECTIONS

June 4, 2013 § Leave a comment

Today municipal general elections are being held across Mississippi.

In the weeks (and months) leading up to this heated election in Meridian, I have been asked whether I would attend this rally or that for this candidate or that. I have been asked why I did not attend a campaign event. I have been solicited for a campaign donation. None of this was sinister, in my opinion, or intended to apply pressure.

So I thought it might be helpful for those of you out there who are involved in politics to point out some of the restrictions that limit how judges can be involved in the election process.

Judges can …

  • Vote.
  • Discuss candidates, election issues, and personal positions with friends and family.

Judges can not …

  • Act as a leader or hold an office in a political organization.
  • Make speeches for a political organization or candidate or publicly endorse a candidate for public office
  • Solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.
  • Engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.

Those principles apply in all elections, including judicial elections. There are some additional restrictions on judicial candidates.

Judges also are prohibited from commenting on matters that might come before them, which could arise from election disputes, political issues, constitutional challenges, and the like. So you might find your local judge mum when the conversation turns to some of the hot-button topics of the day.

You can read the Code of Judicial Conduct here.

SOME RULE 59 PITFALLS

June 3, 2013 § Leave a comment

Here’s the scenario … You are unhappy with the judge’s ruling in the divorce, and so is your client. The judgment was entered 7 days ago, and you and your client agree that neither a post-trial motion nor an appeal were included in the fee you charged to this point. Your client promised to bring you another few hundred dollars to file an appropriate post-trial motion. She understands that a R59 motion will toll the time for appeal, giving her additional time to marshal her assets for an appeal, if necessary. She also understands that the R59 motion must be filed within ten days of the date of the judgment. But time is running out and you haven’t heard back from her. You call opposing counsel, who is quite accommodating and suggests you just send an agreed order extending the time to file. You want 30 days? No problem. He’ll sign.

Pondering your impending dilemma, you arrive at several options:

  1. You could send that agreed judgment extending the time to file a R59 motion. You could get it to the judge at least by the tenth day, getting you in under the wire.
  2. Or, you could go ahead without your client’s participation, and without compensation, and file that R59 motion anyway.
  3. Or, you could just let the ten days go by, and file a R60 motion after then, if you get paid.
  4. Or, you could just not file a post-trial motion, and let the client pay for an appeal only.
  5. Or you could do nothing, and let the sorry so and so just rot in the sun because you weren’t paid.

Let’s look at these one by one:

  1. The agreed order. Before you do this read R59. I’ll wait. [Humming Tom Petty’s You Don’t Know What It’s Like to be Me to myself]. Done? What did you find? Is there any provision to enlarge the time? Not specifically, you say, but it’s not precluded by the language of R59. True, but read on in the Comment, where it says, “The ten-day period may not be enlarged. MRCP 6(b)(2).” R6(b)(2) states that the court, ” … may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.” So that accommodating counsel opposite may really be a Br’er Fox luring you to your doom.
  2. Go ahead on your own. This is the option I would elect. Filing the motion gives your client maximum protection. All R59 relief is on the table, and the time for appeal is extended. If your client changes her mind, you can always dismiss the motion. What about the fact that the filing was not explicitly authorized by your client? You should have no culpability if your action is in your client’s best interest. And as for pay, you can settle that later. Your client’s best interest comes first.
  3. R60 motion instead of R59. Not the best option. R60 does not stop the 30-day appeal clock from running. The scope of R60 is quite different from R59.
  4. No post-trial motion. At first blush, not an entirely unacceptable choice. A post-trial motion is not a prerequisite to an appeal in chancery. One drawback, though, is that if no R59 motion is filed the appeal deadline continues to run unabated. Another drawback is that a R59 motion may alert the judge to some flaw in his or her decision that she could correct, saving your client the considerable expense of an appeal. And, a more subtle consideration is that R59 allows you to bring something to the attention of the trial judge that you may not have objected to or made your record on at trial, and which would thereby be barred on appeal if you did not give the trial judge a chance to rule on it before your appeal.
  5. Rot in the sun. Are you serious?

The confluence of entry of a judgment, deadlines for post-trial motions, and deadline for appeal create a perilous passage fraught with shoals and cross-currents that can cause you and your client great damage. Watch the clock and chart a course that will ensure both of you the greatest possible protection.

“QUOTE UNQUOTE”

May 31, 2013 § Leave a comment

“I always think of nature as a great spectacle, somewhat resembling the opera.”  —  Bernard Le Bovier de Fontenelle

“Every year, back comes Spring, with nasty little birds yapping their fool heads off and the ground all mucked up with plants.”  —  Dorothy Parker

“That’s the problem with nature. Something’s always stinging you or oozing mucus on you. Let’s go watch tv.”  —  Bill Watterson

Plastic 06-23-12 002

ESSENTIAL INGREDIENTS OF THE CONSENT TO DIVORCE

May 30, 2013 § 4 Comments

Kenton McNeese filed a pro se appeal raising the issue, among numerous others, whether the consent for an irreconcilable differences that he and his wife, Katye, had executed and presented to the trial court for adjudication was valid or not. He took the position that it was invalid, thereby depriving the chancellor of authority to grant the divorce. His appeal raised two issues for the MSSC to address regarding validity of the consent:    

  1. Whether or not the consent was in compliance with the statute; and
  2. Whether the chancellor properly overruled Kenton’s motion to “expunge” or withdraw his consent.

In the case of McNeese v. McNeese, handed down April 25, 2013, Justice Coleman, writing for a unanimous court, summed it up about as well as it can be said:

¶13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. . . .

Miss. Code Ann. § 93-5-2(3) (Rev. 2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So. 2d 1121, 1124 (¶ 9) (Miss. 1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly [FN1] and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.

[FN1] Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss. Code Ann. § 25-33-17 (Rev. 2010).

¶15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. [Fn2] Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.

[Fn2] A consent judgment is a final judgment, more like an agreed order, which “must be approved and signed by counsel for all parties . . . before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.

¶16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev. 2004). See also McDuffie v. McDuffie, 21 So. 3d 685, 689 (¶ 7) (Miss. Ct. App. 2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jernigan v. Young, 61 So. 3d 233, 236 (¶ 14) (Miss. Ct. App. 2011). “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce. . . . What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So. 2d 353, 356 (¶ 11) (Miss. Ct. App. 1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.

It might be a good idea to look over the form you’ve been using for ID divorce consents to make sure it includes all of the required elements. Just because you’ve used it a hundred times does not mean that it complies with the statute.

Why is it important to be in line with the staturte? Well, there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid. You wouldn’t want that to cause the demise of a case you thought had been settled and done.

SERIAL MRCP 59 MOTIONS

May 29, 2013 § 1 Comment

The MSSC case McNeese v. McNeese, decided April 25, 2013, is one that addresses a dizzying variety of points. But I want to focus on the particular aspect of the post-trial motions filed by both parties.

By way of background, the case arose after Kenton and Katye McNeese entered into a consent to divorce on the sole ground of irreconcilable differences, reserving for adjudication the issues of custody, visitation, support, equitable distribution, and alimony. After the judge rendered a judgment on September 2, 1011, mostly in Katye’s favor, she timely filed an MRCP 59 motion complaining that Kenton had failed to disclose certain items in his financial disclosures. Kenton neither responded nor filed his own R59 or 60 motion.

Following a hearing on Katye’s motion, the court entered an order on October 12, 2011, ruling on Katye’s motion, followed on the same day by an amended opinion and judgment clarifying the original opinion. And that is when all proverbial hell broke loose.

Kenton fired his attorney and, on the day following entry of the amended judgment, filed pro se “Motion to Reconsider, Motion for New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings.” His motion(s) were filed 31 days after entry of the original judgment.

[Reconsideration, or Rehearing?]

The chancellor, in a display of saintly forebearance that one would be unlikely to experience with this judge, patiently allowed Kenton to present his argument and even evidence, the bulk of which was an attempt to show how the judge was wrong in his original ruling. The chancellor denied Kenton’s motion, Kenton filed a pro se appeal, and the MSSC took 23 pages to arrive at the word, “Affirmed.”

Let’s stop right there. Here are a couple of questions I have about what happened:

  • Kenton’s motion was an attack on the trial judge’s original ruling, essentially asking him to “reconsider” what he had done, or, in the parlance of the rule, for a “rehearing.” Those are R59 issues, that were required to be asserted within ten days of entry of the judgment, but he did not file his motion until 31 days after entry of the judgment. So why was he allowed to raise those points at that late date, and again on appeal? The amended judgment only clarified the original judgment, and apparently did not add anything substantive. Even if it had, however, I don’t think as a matter of law that entry of the amended judgment opened that door back for him, for the reasons I will state below.    
  • In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments. So how was Kenton able to get away with it in his case?
  • Kenton’s motion, since it was filed more than 10 days after entry of the original judgment, was properly a R60 motion. It did raise a single, valid R60 issue, namely the existence of newly-discovered evidence. The chancellor did allow him to proffer the allegedly newly-discovered evidence, which the judge ruled to be insignificant, and the MSSC affirmed. All of the other issues raised by Kenton were outside the scope of R60. I would have rejected them as untimely, and I hope I would have been affirmed.

These may appear to be quibbling points, but litigants, pro se and represented alike, are entitled to a final conclusion to their litigation travail. Untimely and insubstantial post-trial motions delay that finality and inject issues into the appeal that waste time and resources of the appellate courts to address and resolve.

WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE

May 28, 2013 § Leave a comment

I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.

I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?

The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.

That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).

I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:

¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.

If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.

May 27, 2013 § Leave a comment

State Holiday.

Courthouse closed.

DISPATCHES FROM THE FARTHEST OUTPOSTS OF CIVILIZATION

May 24, 2013 § Leave a comment

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THE CHARM OF CHECKLISTS

May 23, 2013 § 2 Comments

For those of you who are relatively new to this blog, I want to call your attention to how crucial it is to put on proof of the various factors that have been mandated by the appellate courts to make your case. It’s a subject I bring up every now and then to make sure that lawyers know about it.

It’s what I call trial by checklist. You can think of the factors as a checklist of what you need to prove to make your case. If you fail to put on proof of the factors, as I have said here many times, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers print out these checklists and use them at trial. Please feel free to copy these checklists and use them in your trial notebooks. You’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Up there on the right is a box labeled “Select Category.” There is a “Checklist” category that will take you to all the posts with and about checklists.

 

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