A POTPOURRI OF POINTS

April 21, 2011 § 2 Comments

Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use.  Such is Jernigan v. Young, handed down by the COA on April 19, 2011.

Samuel Jernigan and his wife Mae Bell were married in 1997.  Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed.  He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve.  Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him.  There was no writing evidencing the alleged agreement.

In 1998, Mae Bell conveyed the property to her daughter Amy.  It is not disclosed in the record whether Samuel was aware of the transaction.

In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences.  They proceeded pro se using fill-in-the-blank forms.  In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”

Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside.  He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated.  The case sat idle for seven years until Amy filed for summary judgment.  The chancellor granted summary judgment, which the COA affirmed.

Here are the nuggets from Judge Griffis’ opinion:

  • “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.”  Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
  • Relief under MRCP 60(b) requires a showing of “exceptional circumstances.”  In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
  • No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences.  MCA § 93-5-24(4).  In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.”  Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
  • Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal.  Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
  • It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce.  St. Germain at 417-418.  Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error.  Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
  • An inter vivos deed of gift need not be supported by separate consideration.  Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999).  “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.”  Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
  • MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void.  The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present.  Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).

And the most important point of all:  You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.

TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE

April 20, 2011 § 3 Comments

If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.

Here are some of the most effective:

  1. Use the children as pawns.  Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents.  Use denial of visitation or contact as a tool to retaliate.  Then tell the child it’s all the other parent’s fault.
  2. Use the children as spies.  Nobody makes as good a spy as an insider.  So what if it puts the children in the  middle, or makes them feel like traitors, or makes them choose sides.  As long as I get what I want, what does it matter, right?
  3. Deny the other parent access to the children.  Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse.  Utilized long enough, this tactic can completely estrange the children from the non-custodial parent.  This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
  4. Make the children feel guilty for loving the other parent.  This one is guaranteed to create maximum warpage.  “Who do you love the most, me or mommy?”  Some parents even punish the child for a “wrong” answer.
  5. Use the children as messengers.  Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on.  This is an effective way to put the children right in the middle, and to let them in on adult concerns.  Gives them something more to worry about, and shifts the responsibility off of the parents.
  6. Criticize the other parent to the children.  It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from?  It feels super to get that off your chest — right onto the children.
  7. Model vindictive and spiteful behavior.  “Do as I say, not as I do” is the motto of parents who engage in this behavior.  Only problem is, that philosophy has never worked when raising children.  But who cares?  It’s worth it to take a swipe at the old ex, right?
  8. Ignore the children’s stress and negative behavior brought on by the litigation.  Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.”  None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
  9. Try to “win” the children over by relaxing discipline.  Parents who want to be the child’s best friend, not an authority figure.  Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent.  The fly in this ointment is that after a while the child won’t mind you no matter what.  But that’s okay as long as you’re best buds, huh?
  10. Use the children as targets to vent your own anger and frustration.  What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex?  Everything.

As lawyers, you can exercise a lot of influence over your client’s behavior.  I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.

FIVE TIPS TO IMPROVE YOUR PROBATE PRACTICE

April 19, 2011 § 7 Comments

  • Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account.  That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do. 
  • Always ask that a duplicate bank statement be sent to you for the estate account.  If the bank balks, direct that the bank statement be sent to you and not the fiduciary.  Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made.  Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
  • Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate.  This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
  • Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness.  It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
  • Do an inventory even when one is not required.  Inventory establishes the baseline for accounting.  It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.

SEASONAL VARIATIONS IN INCOME

April 18, 2011 § 1 Comment

One of the vexing questions in child support cases is how to treat seasonal variations in income.

Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year.  Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years.  What can you tell him to expect about child support for his two children?

What you have here is a seasonal variation in income.  For ten months guideline child support would be $400 per month, and for one month it would be $2,000.

How should you ask the court to address it?

I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it.  That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes.  Consider the following case:

In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve.  Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833.  The resulting child support would be $566.  In effect, the chancellor’s decision spread the bonus over the entire year.  On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income.  The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.

In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally.  Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines.  Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.

What if the bonus that you are asking to except from the guidelines varies?  Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000.  Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support.  Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average.  In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.”  That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.

IF DIOGENES LIVED IN MERIDIAN IN THE 21ST CENTURY …

April 15, 2011 § Leave a comment

Instead of shining his lamp, I guess he’d take out a want ad in the Meridian Star like this dude did last Sunday …

In a way, I’m kind of pulling for him to have success in finding a non-wimp, honest lawyer.

Thanks to Pam Bittick, Esq., for this.

[SIDE NOTE:  If my information is correct, the gentleman who ran this ad was actually a candidate for governor in 2007.]

DICTA

April 15, 2011 § Leave a comment

Hunter S. Thompson

Keith Richards

A HELPFUL VISITATION RESOURCE

April 14, 2011 § Leave a comment

Mississippi Department of Human Services’ Division of Child Supprt Enforcement has a program designed to aid non-custodial parents with visitation.  You can read about Mississippi’s Access and Visitation Program (MAV-P) by clicking on the link.  The site includes contact information.

MAV-P offers parents who have a court order a neutral facility for visitation and supervised visitation.

For parents without a court order, the program offers a mediation service.

Also included are parenting education and fatherhood mentoring.

Neither parent is required to be a recipient of DHS benefits, but paternity must be established in all cases as a prerequisite to participation in the program.

Any lawyer who has done much custody work can tell you that visitation cases can be as difficult and touchy as the most hotly contested custody cases.  Since Wesley House in Meridian stopped offering supervised visitation some time ago, it has been a challenge to come up with a viable solution when confronted with the need for supervision.  Now it appears that we have a way.  I have tried to communicate this information to as many of our guardians ad litem (GAL’s) as possible.  And now you are in the loop.  Please let me hear from you about the effectiveness vel non of this program.

CAVEAT:  One of the Lauderdale County GAL’s informed me that she tried to invoke these services only a couple of months ago and was told that this office did not have such a service.  If she was informed correctly, that’s more ammunition for those who have questioned whether Lauderdale County DHS is functioning as it should.

UNCONTESTED DIVORCE: ON OR OFF THE RECORD?

April 13, 2011 § 4 Comments

Should you make a record when presenting an uncontested divorce?  I usually leave it up to the lawyer.  If you’re making that decision, you should consider the COA decision in Simmons v. Simmons, rendered March 29, 2011.

In that case, the appellant failed to appear or defend, and his ex-wife went ahead and presented the case as an uncontested divorce.  The chancellor entered a judgment granting his ex-wife not only a divorce, but also the entire marital estate and attorney’s fees.  Joey presented several issues on appeal, one of them that his ex had failed to make a record, and as a result there is no evidence to support the chancellor’s award.

The COA opinion, written by Judge Roberts, cited Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008) for the proposition that there is nothing in MCA 93-5-17(1) that requires transcription of an uncontested divorce hearing, and there is a presumption that there is sufficient evidence to sustain a decree if one is entered by the chancellor.

It’s still up to you whether or not to make a record, but it may just be counterproductive to have one.  if you make a record, it seems that you are creating something for the other side to use as a target, and they just might hit the jackpot on a lucky Tuesday with the COA.  On the other hand, if you make a perfect record, in a child custody case, for example, you might seal off any attack.  What do you think?

THYME FOR LEA & PERRIN TO FILE AN ACCOUNTING FOR ROSEMARY

April 12, 2011 § Leave a comment

Examining an accounting in a probate matter such as an estate, guardiandhip or conservatorship can be a mind-numbing task:  bank statement, bank statement, cancelled checks, bank statement, bank statement, cancelled check, bank statement, cancelled checks, receipt, receipt, receipt, bank statement, and on and on.

My day was considerably brightened recently as I pored over an annual account in a conservatorship:  bank statement, cancelled checks, bank statement, receipts, cancelled checks, bank statement, barbecue shrimp recipe, bank statement, receipts.

Wait a minute … backspace … barbecue shrimp recipe?  In an accounting?  I never heard of such a thing.

My first reaction was that perhaps this seasoned lawyer had slipped it in there just to see whether I really read all that stuff (he should know better).  Then it occurred to me that maybe he was trying to document the ward’s standard of living (but that might not be a good idea because the ward has since died, and this is after all a pretty artery-clogging recipe).  Or maybe it was intended to be an inventory of the ward’s kitchen assets?  I eagerly anticipated my meeting with counsel for an explanation.

When I met with the attorney, though, he disclaimed any idea how the recipe might have gotten into his court file.  He professed to be as bumfuzzled about it as I was.  Now, faced with such a mystery, lawyers generally blame their secretaries, but not this lawyer.  He took the high road and blamed it on one of the deputy clerks.  When the deputy clerk was confronted, however, she pointed the blame at the lawyer’s secretary, so the customary cycle of legal blame came around full circle to where it belongs.

But I was not looking to place blame.  Not at all.  I wanted instead to commend the perpetrator for adding some spice to what can be a mundane, tedious task.  Alas, however, the identity of that heroic person shall apparently remain a secret.

Now, I know what you are wondering.  You are wondering what exactly was this recipe that stirred up so much attention.  Well, here it is, verbatim, from the court file …

BBQ Shrimp

2      Sticks melted butter

1/2      Cup Lea & Perrin’s

1      Tsp salt

1      Tsp black pepper

1/2      Tsp cayenne pepper

2      Tsp garlic puree

1      Tsp thyme

2      Tsp rosemary

1/2      Tsp celery salt

1      Tsp olive oil

Mix and cook, not boil, let cool.

Put shrimp [quantity not provided] in dish w/mix, ref. over night, cook at 350, stir every 4 to 5 min and turn shrimp when 1/2 way done, taste after 20 min.  cook about 30.

It occurs to me that if every lawyer would file a recipe with annual and final accounts, we could at length compile a cook book, perhaps with a catchy title like Cooking from the Court Files, or Entertaining Intestacy, or Recipes De Bonis Non.  We could organize it so that conservatorship accounts would be accompanied by seafood recipes, guardianships would have entrees and appetizers, intestate estates would have meat dishes, testate estates would have breads and breakfast recipes, and trusts — of course — would include desserts.  I think I’ll see if Judge Mason will consider a local rule to that effect.  Or instead, maybe we can implement this idea across the state, sell the books, and fund a judicial pay raise.  Winner, winner, chicken dinner.

 

CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

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