FIVE MORE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 21, 2011 § 3 Comments

  • Sometimes the parties want the property settlement part of the PSA to be a final, binding contract regardless whether there is any contest.  If you don’t include that provision unequivocally stated, the law is clear that the court can not enforce the contract piecemeal.
  • If a payment is to be made, such as child support, specify the first payment date and the regular monthly date for payment.
  • If something is to be done, specify the date by which it is to be done.  In the alternative, include a stock provision in all your PSA’s to the effect that “If no specific date is stated by which an action in this Agreement is to be accomplished then it shall be done and completed not later than thirty days from the date of this agreement.
  • If something is to be done, specify whose responsibility it is to do it.  For instance, the provision that “All child support payments due hereunder shall be made pursuant to the Bank Plan,” was held by Judge Mason not to be clear enough that it was the payor’s responsibility to enroll in and make payments under the plan where he had been unrepresented in the divorce.  Better to say something like “Husband shall be solely responsible to do all acts and things necessary to enroll in and make all child support payments due on and after August 11, 2011, through the Bank Payment Plan.”
  • Section 71(b)(1)(B) of the Internal Revenue Code allows the parties to agree that alimony will be neither taxable nor deductible.

COMING TO GRIPS WITH McDONALD

June 20, 2011 § 7 Comments

I don’t think it’s an overstatement that the Mississippi Supreme Court’s decision in McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), set chancery court practice vis a vis guardians ad litem (GAL) on its proverbial ear.  And it’s not so much what McDonald held as what it hinted at.

Before McDonald, it was common practice to allow a GAL to investigate, file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation.  After all, most of what a GAL unearths is based on hearsay: the GAL interviews the children, neighbors, school teachers, parents, relatives, and reviews medical records and school records.  In my experience most chancellors allowed the GAL to testify to the facts disclosed in the investigation, and I don’t recall anyone ever objecting to the hearsay.  Most lawyers used the GAL’s report as a guide for what evidence would prove or disprove the case.  It was a good system that allowed a qualified person as an arm of the court to look behind the positions of the warring parties and to pierce the veil of partisanship.  I have observed on more than one occasion in contested child custody cases that the momma and dady are each zealously pursuing their own positions, but no one is looking out for the best interest of the children.  The GAL’s role as arm of the court was a perfect complement to the chancellor’s role as superior guardian of the children.  Frankly, it worked pretty well when a well-qualified and diligent GAL was involved.  When the GAL proved to be less than diligent, the chancellor was free to discount or even disregard the findings and recommendations.

Enter McDonald.  In that case, the mother in a child custody modification case objected to the GAL’s oral testimony, ” … stating that if the teachers and others being quoted by the GAL had something to report, they should have been required to be there. The court responded that
GALs are allowed by “historical practice” to offer hearsay testimony, and overruled the objection. ”  McDonald at 884.

The Supreme Court disagreed and pointed out without expressly holding that a GAL’s oral hearsay testimony should be excluded.  Justice Dickinson’s specially concurring opinion was even more blunt when he stated that MRE 1 expressly states that the evidentiary rules do apply in chancery court.  End of dicussion for him.

The court did not extend its hearsay proscription to GAL written reports, however.  The following language, beginning on page 882, is instructive:

“Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking ‘on a role as a litigant/expert’ by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony as discussed below, the GAL was simply following the provisions of the GAL statute and the pronouncements of this Court. This Court dealt recently with a similar issue in S.G. v. D.C., 13 So.3d 269 (Miss.2009), an opinion handed down after the briefs were filed in this appeal. The S.G. Court stated the following regarding the proper role of a GAL:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.  Id. at 282.

The GAL in the case sub judice did not offer the type of testimony criticized in S.G. See id. at 274 n. 5.  This GAL reported on matters required by her appointment, and consistent with a GAL’s duties as outlined in S.G. Id. at 282.

The statute’s provision that a GAL “shall have the duty to protect the interest of a child for whom he [or she] has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest,” is consistent with the traditional roles required of a GAL, which predate the enactment of the statutes. Miss.Code Ann. § 43-21-121(3) (Rev.2009). In In the Interest of D.K.L., 652 So.2d 184 (Miss.1995), this Court held that a GAL had failed in his duties by simply deferring to a therapist’s recommendations, and not submitting his own recommendation as to the best interests of a child. Id. at 188. The D.K.L. Court stated that the GAL ‘did not have an option to perform or not perform, rather he had an affirmative duty to zealously represent the child’s best interest.’ Id. In In the Interest of R.D., 658 So.2d 1378 (Miss.1995), this Court held that “children are best served by the presence of a vigorous advocate free to investigate, consult with [the children] at length, marshal evidence, and to subpoena and cross-examine witnesses.” Id. at 1383 (quoting Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (S.C.Ct.App.1990)). See also M.J.S.H.S. v. Yalobusha County Dep’t of Human Serv. ex rel. McDaniel, 782 So.2d 737, 740-42 (Miss.2001)(GAL failed in his duty by relying on DHS records and the recommendations of a therapist and social worker). In D.J.L. v. Bolivar County Department of Human Services ex rel. McDaniel, 824 So.2d 617 (Miss.2002), this Court found no error in a GAL’s cross-examination of witnesses. Id. at 622. The Court also ’emphatically proclaim[ed] to the bench and bar that … the guardian must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent.’ Id. at 623. Therefore, the GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination.

The chancellor did not allow the GAL to usurp his role as the “ultimate finder of fact.” Id. The chancellor heard all witnesses, read all the
reports, and made his own decision based upon independent findings of fact.  Thus, we find this portion of Jennifer’s argument to be without merit.”

Footnote 7 on page 884 states:

“Hearsay testimony should not to be confused with a GAL’s written reports, which sometimes, by their very nature, will include statements, which, if offered into evidence at trial to prove the truth of the matter asserted, would be inadmissible hearsay, unless they qualify under one of the exceptions to the rule against hearsay. Any such inadmissible hearsay, however, would not require exclusion of the entire report. This issue is not before the Court this day.”

I have heard reactions to McDonald that just about cover the ball park.  One chancellor has said that he and the other judge in his district no longer appoint GAL’s unless they are required by statute because they feel that McDonald has rendered the GAL role ineffective and superfluous.  I have heard chancellors confess that they don’t have any idea where to go post McDonald when it comes to GAL’s.  And GAL’s have come to me and said they are now quite confused as to what they can and can not do.

The GAL system is far too valuable to chancery court to be relegated to the trash heap.  At least for the time being, chancery court maintains its historical distinction from circuit in that the chancellor has a high duty to act in the best interest of a child, and to have a greater role at trial than to be a mere referee blowing the whistle and throwing penalty flags for hearsay transgressions; the chancellor’s duty is to ensure that the best interest of a child is protected, even when the parties themselves do not do so.  The GAL has for many years given the chancellor a practical, effective way to meet his or her responsibility.

So how do we reconcile McDonald with the traditional role of the GAL?  I think it comes down to the following for the party who will make positive use of the GAL recommendations:

  1. Plan to qualify and tender the GAL as an expert.  Ask the court at the outset of trial for leave to allow the GAL to remain in the court room in her role as an expert, if the rule is invoked.
  2. Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.
  3. Finally, call the GAL as an expert witness and offer her report into evidence.  She should qualify as an expert because of her legal training and experience, plus the fact that every GAL now must undergo special training and maintain certification.  And as for her testimony, remember that, under MRE 703, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”  Moreover, with all of the factual evidence already in the record, the GAL is free to comment on it.

But, you say, this will result in more cumbersome, longer and more expensive trials in custody actions with GAL’s.  You are certainly right, but that is what the supreme court is directing us to do.

My understanding is that the GAL in McDonald was qualified as an expert.  The opinion in McDonald did not explain why Rule 703 was not an adequate basis for her hearsay testimony that ” … need not be admissible in evidence.”  So until the MSSC takes another shot at the issue, I interpret McDonald to mean that the GAL may include hearsay in his report, and may testify to it NOT to establish the truth of the matter asserted, but to establish the basis for his recommendations.  In other words, you will have to call the witnesses and have them testify, and put the documents, photos and records in via competent testimony if you want or need those facts to be established in the record.

For now that is the way I will approach McDonald.

SHARING THE HARVEST

June 18, 2011 § Leave a comment

Lisa has a knack for growing all manner of things.  Her patio garden of potted plants yields up a delicious variety of produce that finds its way into our grateful kitchen. This summer we are enjoying tomatoes and peppers galore, as well as the usual herbs. At the end of the summer we will again have a bumper crop of juicy lemons.

This year we have been sharing the harvest, but not with gladsome hearts.

You see, our little patio garden is being pillaged by 2 quarreling mockingbirds (tempting to kill them, but such is proscribed here in the south), a chipmunk with an attitude of entitlement, a sassy squirrel, and a bitchy wren who scolds as she is run off.  These little monsters gobble holes into the tomatoes and even like to nibble on the hot cherry peppers.  The netting spread over to ward them off has only set them a challenge to which they have gamely risen. This afternoon I fought hundred-degree heat to shoo most of the characters away — twice.  One of the mockingbirds, the chipmunk and the wren had all gotten underneath the netting and were feasting away on the two biggest, ripest tomatoes.  Ruined. I had to release the insanely panicked mockingbird from his frantic prison in the net — and again five minutes later.  The wren and the munk escaped unhampered, but the wren stuck around long enough to scold me stridently as I labored to loose the mocker.

The corpus delecti

The netting is now rearranged and more secure. My reassuring, “Don’t worry, they won’t want to fight this netting,” proved to be foolishly wrong.

I did set up a kind of a bird bath nearby, with fresh water, based on the theory that the little critters are actually thirsty in this miserable heat. We’ll see whether that gives some relief from the onslaught.

So it’s man against nature. Mano a mano. Will we prove to be able to outsmart these creatures? Stay tuned.

Ironically, just last week, there was another shared harvest. Our beautiful Easter-yellow daylillies bloomed in the front yard, down by the street. I noted how the dozen or so blooms trumpeted their beauty in the morning light as I left the driveway on the way to the court house.  When I returned home that evening, alas, someone had picked them all, right from our yard. The lovely blooms graced someone else’s table, I suppose.

Now I am not sure of the etiquette that is involved here. On the one hand, one could argue that they are God’s gift to us for all to enjoy. If that’s so, why does the person who picked them get to enjoy them selfishly? Why not leave them there by the curb for all to smile on?  And on the other hand, it’s my property, dammit. Where do you get the nerve to come on my property and pick my (or God’s) flowers?

Oh, well, I am over it. Maybe the flower-picker really needed those blooms more than I did. I’ll leave it at that.

The flowers did remind me of an incident that happened up the street several years ago.  The guy is in his house at dusk and notices two women digging in his garden where he had planted many perennials and bulbs.  He walks down the sloping driveway and greets the two women who are cordial, but intent on their task. One is snipping flowers and the other is digging up bulbs. He asks them to stop and the women are indignant. How dare he. The snipper says she is giving an engagement party for some young friends of the family and needs these flowers. Her companion points out that the daylillies need dividing anyway, and she is merely taking some of the division. All well and good, he says, but I want you off my property and don’t come back and molest my flower bed, he says. The women leave in a huff, incredulous at his insensitivity and crass indifference to their sense of entitlement.

When he told me who the women were, I knew one of them quite well, as I had represented her in a divorce a few years before. The other I knew in passing. Either woman could have whipped out a check and bought the guy’s house and flowers without any pinch in their budgets. I wonder whether they were aware that we now have florist shops that more or less eliminate the need to shop in other people’s yards for your flower needs.

And so we march into summer, which begins Monday. Ouch. Its’s not even summer yet and it’s already hot as hades. The last summer I remember like this was 2005 — the summer of Katrina.

But tomatoes like it hot, right?  And mockingbirds, squirrels, wrens and chipmunks like tomatoes. Anybody got a recipe for mockingbird, wren, squirrel and chipmunk fricasee … with tomato?

MORE ON ELVIS IN THE QUEEN CITY

June 17, 2011 § 1 Comment

I posted here, here and here about Elvis Presley’s appearance in Meridian in 1955.

Here’s a photo provided by Jim Myrick of WMOX radio showing Elvis, Ann Ray and Mae Boren Axton at Meridian Junior College Stadium on Thursday, May 26, 1955.

And a bonus … Here’s a pic of Hank Snow, Anita Rodgers Court (daughter of Jimmie Rodgers), Ernest Tubbs, Carrie Rodgers (Mrs. Jimmie Rodgers), and Johnny Cash at the Jimmie Rodgers Memorial in Highland Park during the Jimmie Rodgers Festival in 1957.

THE SMELL TEST: YOU’LL KNOW IT WHEN YOU SEE IT

June 16, 2011 § Leave a comment

Sometimes you know something ain’t right.  It doesn’t pass the smell test.

Or, as US Supreme Court Justice Potter Stewart opined, famously employing a different sense when attempting to define obscenity:  “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”  Jacobellis v. Ohio, 378 US 184, 197 (1964).

Returning to the olfactory realm, we encounter the fetid aroma of impropriety in chancery proceedings now and then.  Parties conceal assets from one another, warring child custodians grab a child and run and then lie about the whereabouts, witnesses lie under oath, 8.05 statements just don’t add up, et cetera and so on.

But is it fraud?

A finding of fraud opens the defrauded party to all manner of equitable relief.  Before you set out to claim fraud, though, there are some things you need to know.

The Elements of Fraud

The elements of fraud, which must be proven by clear and convincing evidence:

  1. A representation;
  2. its falsity;
  3. its materiality;
  4. the speaker’s knowledge of its falsity or ignorance of its truth;
  5. the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated;
  6. the hearer’s ignorance of its falsity;
  7. the hearer’s reliance on its truth;
  8. the hearer’s right to rely thereon; and
  9. the hearer’s consequent and proximate injury.

In re Estate of Law, 869 So.2d 1027, 1029 (Miss. 2004), citing Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). See also Spragins v. Sunburst Bank, 605 So.2d 777 (Miss.1992); Martin v. Winfield, 455 So.2d 762 (Miss.1984)

 Pleading Requirements

MRCP 9(b) states: “In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” The comment is worth reading.

A party is not entitled to relief on the basis of fraud where the complaint fails to state the circumstances constituting fraud with particularity and the parties did not try the issue by consent. Brown v. Chapman, 809 So.2d 772, 774 (Miss. App. 2002).

Fraud cannot be inferred, presumed, or charged in general terms. The specific acts of fraud must be definitely averred. Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 331 (Miss. 1992).

This is important:  If a finding of fraud is important to your client’s case, you must plead it, identifying the specific acts you claim are fraud, and specifying for each the acts complained of.  The other party may challenge the sufficiency of your pleadings using MRCP 12(b), but if she does, the court is required to give you an opportunity to amend.  What if the other party creates a nightmare scenario for you by not going the 12(b) route and simply waiting for trial, then objecting right and left to any proof you offer of fraud, moving ultimately to dismiss for failure to plead properly?

The Badges of Fraud

The Mississippi courts have recognized ten “badges of fraud” that a court may use to consider in making a determination whether a party’s intent was fraudulent:

  1. Inadequate consideration for the transfer.
  2. Conduct out of the ordinary course of business.
  3. An absolute conveyance as security for a loan.
  4. Secrecy.
  5. The transferor’s insolvency.
  6. A transfer of all the transferor’s property.
  7. Retention of possession by the grantor.
  8. Failure to list the property covered by the conveyance.
  9. The relationship between the transferor and the transferee.
  10. Whether the transfer was to someone with no apparent use for the property.

A&L, Inc. v. Grantham, 747 So.2d 832, 843 (Miss. 1999).

FIVE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 15, 2011 § 5 Comments

I’ve had these suggestions on the stockpile for a little while, waiting for an opportune time to post them.  Considering Randy Wallace’s post about a less-than-perfect PSA yesterday, I thought now was a good time to float these. I’ll have more later.

  • If you don’t address allocation of the tax exemptions for the children as dependents, the IRS takes the position that it remains with the custodial parent.  If the non-custodial parent will get the exemption, or it will be split, you should include language that the parties agree that they will promptly complete and timely execute and deliver IRS Form 8332 in order to give effect to the provision.  That form is the one that the IRS requires to claim the exemption.
  • Stick with the traditional terms.  The IRS understands the terms periodic alimony, lump sum alimony, rehabilitative periodic alimony, and child support.  If you try to disguise those terms as spousal support or family/spousal support, or family maintenance, or something similar, you are likely sending your client off onto a collision course with the IRS.  William Wright, an attorney in Jackson, told of a case he had where  opposing counsel insisted on applying the term family support to a substantial payment that William’s doctor-client was having to pay each month.  William complied, and his client later took the position with IRS that the payments met all the requirements for alimony, so that he should be able to deduct it, and it should be alimony to the recipient.  IRS agreed, costing the recipient a whopping tax bill, and no doubt improving William’s standing in his client’s estimation.  Had the payments been allocated between child support, which is not taxable, and alimony, which is, the result would have been far different for the recipient spouse.
  • If the other party is not represented, have you made it clear in the agreement which party you do represent, and have you added language to the effect that the other party acknowledges that you have not given him or her any legal advice?
  • Name the children in the agreement.  It affects them directly.  I have read agreements that refer only to “the minor children,” without identifying them, or stating their ages or birthdates, or even how many there are.
  • Have you bothered to read the agreement?  Does it make any sense?  Here’s an actual sentence from a property settlement agreement I was presented:  “Husband to have his title and car, and wife hers.  Each to pay and hold harmless.”  I think I know what that means.  But that doesn’t make it an enforceable contract.

A YEAR DOWN THE ROAD

June 14, 2011 § 8 Comments

It was exactly one year ago today that I started this blog.

My hopes then were the same as they are now:  that I could provide a way to communicate with lawyers about the way we do business in this district as well as how to do better chancery practice.

I have heard from lawyers throughout the state that they are reading this blog regularly and deriving some benefit and enjoyment.  I have heard it from lawyers on the coast, in the Delta, Jackson area, Tupelo, Southaven, Vicksburg, Hattiesburg, both M.C. and Ole Miss law schools, other judges, and even from other states.  A few lawyers in our district actually read it from time to time.  Good. I’m glad to be of help.

We get between 250 and 350 views on the average Monday through Friday; occasionally something will catch readers’ attention or another blog will point out a post, and the views will spike over 500. Readers drop down to about 100 each on Saturday and Sunday.  Those are not big numbers for some blogs, but considering the limited scope we work with here, and the narrow focus, I consider that pretty good.  I’ll keep it up as long as it continues to be a helpful resource.

I’m looking at changing the appearance of the site to make it more visually appealing, although I favor lack of clutter and minimal frills.

I still encourage your comments.  Just because I interpret something in a particular way does not end the debate.  Lawyers in my district will tell you that I am open to differing opinions without taking umbrage.  Don’t be afraid to take issue with my stand. You might not persuade me, but there’s no penalty for civil disagreement.

As always, if you have an offering to publish, or an idea for a post, or a suggestion, send it on via email.

Thanks for letting me be of service this past 365 days.

HIDDEN COSTS OF DIVORCE

June 13, 2011 § 4 Comments

John and Marsha have decided that they are tired of living in their own, personal soap opera, and they have agreed to an irreconcilable differences divorce.  It looks pretty simple:

Marsha will get the former marital residence.  It’s paid for and Marsha intends to stay there.  The house sustained some damage in a wind storm a couple of years ago, and the parties got $10,000 for repairs from insurance, but they spent it on a Hawaiian vacation, with a few days in Vegas on the way out, in an unsuccessful attempt at refreshing their marriage.  Marsha says she can get the repairs done or not because they don’t affect its habitability.  The roof needs replacing, but it’s been patched and doesn’t leak.  She says she’ll fix it if and when it leaks or when she sells the house, but she does not have the $6,000 it will cost right now.

The parties own two adjoining commercial lots worth about $15,000 each.  Marsha has agreed to take the lot they purchased in John’s name in 1990 for $1,500 before Wal-Mart located down the street.  John will get the jointly-titled lot they purchased for $12,500 several years ago.  A car lot is expanding and has expressed an interest.  Marsha would like to settle the divorce as soon as possible so as to cash in.  Marsha owes $14,000 on her credit cards, and she’s behind in her payments, so she needs as much cash as she can get out of sale of the lot.

The parties will split the 1,000 shares of Wal-Mart stock that they accumulated through the years.  Marsha really doesn’t know much about stock, so John has generously agreed to divide the shares.

Marsha has enjoyed driving the 2008 Jaguar that John bought her several years ago in an attempt to make up after she caught him in a questionable situation with a waitress from the Waffle House.  The car is paid for, and Marsha loves it because she has never had a nice car before.  She will get it in the divorce.

John has agreed to pay Marsha $1,000 a month in rehabilitative alimony for 36 months.  Even with the alimony, it will be a tight squeeze financially for Marsha, so she doesn’t need any unpleasant financial surprises after the divorce is final.

Marsha is in a hurry.  She wants you to do up the papers and she will pick them up to go over with John tomorrow, so she can get them filed right away.

It’ll be a snap to prep the PSA, and you are tempted to just hand the notes over to your secretary so they can be done while you hit the golf course.

Before you jump on this, though, ask yourself whether Marsha will really be getting what she thinks she is bargaining for.  Consider:

  • The divorce will be a transaction effecting a change of ownership in the former marital residence, triggering a re-rating of the homeowner’s insurance.  Because the hurricane repairs have never been done and approved by the insurance company, Marsha’s homeowner’s insurance premium is likely to skyrocket.  Not only that, but there are other factors that can adversely affect Marsha’s insurance premium, including her credit rating, which is questionable due to the credit cards.  In order to get her homeowner’s insurance premium back with a reasonable range, she will have to spend that $6,000 on the roof and complete the other repairs.  How can she find out in advance whether she will have a problem? Marsha can get a free insurance C.L.U.E. (Comprehensive Loss Underwriting Exchange) report by writing CLUE, Inc. Consumer Disclosure Center, P. O. Box 105295, Atlanta, GA, 30348-5295, or by calling 1-866-312-8076.  An insurance agent can help her decipher the report.  And, as you probably know, she can get a free credit report once a year.
  • When the commercial lots are sold, Marsha will be paying capital gains taxes, currenty 15%, on $13,500.  John will be paying capital gains on just $2,500.  Marsha’s tax bite will be $2,025, leaving her $12,975.  John’s taxes will be a mere $375, allowing him to pocket $14,625, or $1,650 more than Marsha.
  • Also, has Marsha gotten a title opinion on the commercial lot titled in John’s name?  It would be a bitter pill indeed to discover when she goes to sell it that John borrowed money against it without her knowledge.
  • The stock has the same pitfall as the commercial lots.  Stock purchased for $25 a share years ago will carry a much heftier capital gains burden than will the shares purchased for $65 a few years ago.  Moreover, John can allocate himself the shares that have sustained losses in the recent downturn.  Yet the parties are treating all the shares the same, and, to make it worse, John will call the shots.
  • As for her ride, Marsha needs to look at it as a cash drain.  How much is she willing to let it drain her?  The insurance alone is more than $1,500 a year, and this year’s tag, which is now due, is $862.  Not only that, it uses exclusively premium gas, and has never gotten the 21 miles to the gallon that the dealer promised.  Yes, it is paid for, but would she do better selling it and taking the cash to buy something more economical?  Can she even afford this car?
  • Finally, the alimony  is taxable income to Marsha unless the parties agree that it will not be taxable.  John will not likely agree due to the fact that he will get to claim it as a deduction.  Is Marsha aware of this?  Can you negotiate an extra $300 or so a month for Marsha to use to pay her income taxes?

You can do the papers exactly as Marsha dictated, or you can sit her down and bring all these matters to her attention.  It’s the difference between acting as Marsha’s clerk-typist and acting as her lawyer.  You get to decide.

GANDHI: SEVEN SOCIAL SINS

June 10, 2011 § 2 Comments

Politics without principle.
Commerce without morality.
Science without humanity.
Knowledge without character.
Wealth without work.
Pleasure without conscience.
Worship without sacrifice.

— Mohandas K. Gandhi, 1925

WHEN IS A GIFT A GIFT?

June 9, 2011 § Leave a comment

We’ve talked here before about inter vivos gifts between spouses, and how they do not raise a presumption of undue influence.

What about where the question is whether in actuality there was a gift at all, as where a child claims that the now-deceased or infirm parent made a gift of an item, and the siblings deny that any gift was made?

As a general rule, the donee bears the burden of proof by clear and convincing evidence all of the following:

  1. That the donor is competent to make a gift;
  2. That the gift was a voluntary act of the donor who had donative intent; 
  3. That the gift was complete and not conditional; 
  4. That the donor delivered the gift; and 
  5. That the gift was irrevocable.

In re Estate of Ladner, 909 So. 2d 1051, 1054 (Miss. 2004).

In the case of real property, however, the person seeking to set aside a facially valid deed bears the burden of proof. Mullins v. Radcliff, 515 So.2d 1183, 1190 (Miss. 1987).

In the case of a CD titled in the names of two or more persons, payable to any of the persons named, it is presumed that those persons are owners of the account.

In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So. 2d 935, 942 (Miss. 2001) (citing Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993)). “When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’” DeJean v. DeJean, 982 So. 2d 443, 449-50 (Miss. App. 2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963)). That presumption of ownership may be overcome “‘upon proof of forgery, fraud, duress, or an unrebutted presumption of undue influence.’” Reilly, 784 So. 2d at 942 (quoting Madden, 626 So. 2d at 617).

These notes are taken from Judge Griffis’s COA opinion in Yarborough v. Patrick, decided June 7, 2011, at ¶¶ 22-26.

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