“QUOTE UNQUOTE”
July 29, 2010 § Leave a comment
The late, great Molly Ivins
“The first rule of holes: When you’re in one, stop digging.” — Molly Ivins
“History teaches us that men and nations behave wisely once they have exhausted all other alternatives.” — Abba Eban
“It isn’t that they can’t see the solution. It is that they can’t see the problem.” — G.K. Chesterton
TRIAL BY CHECKLIST: GRANDPARENT VISITATION
July 28, 2010 § 16 Comments
A practice tip about trial factors is here.
Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:
- Potential disruption in the child’s life;
- Suitability of the grandparents’ home;
- The child’s age;
- The age and physical and mental health of the grandparents;
- The emotional ties between grandparents and the child;
- The grandparents’ moral fitness;
- Physical distance from the parents’ home;
- Any undermining of the parents’ discipline;
- The grandparents’ employment responsibilities;
- The grandparents’ willingness not to interfere with the parents’ rearing of the child.
Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.
If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award. Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).
INS AND OUTS OF GRANDPARENT VISITATION
July 26, 2010 § 4 Comments
[This outline is based in part on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
Who is entitled to grandparent visitation?
Category One: Grandparents who have a change in status. § 93-16-3 (1), MCA.
— Child of the grandparents lost custody of the grandchild to the grandchild’s other parent, or
— Child of grandparents had parental rights terminated, or
— Child of grandparents is deceased.
Category Two: Grandparents who are not in Category One and have a “viable relationship.” § 93-16-3 (2), MCA.
— If grandparent had established a “viable relationship” with grandchild and grandchild’s parent or custodian hs unreasonably denied visitation with the grandchild, and
— Visitation rights will serve the grandchild’s best interest.
A “viable relationship” is where the grandparent has supported the grandchild in whole or in part for not less than six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition.
In order to determine whether visitation rights will serve the child’s best interest, and the extent of the visitation that should be ordered, the court must address the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997), which are set out here.
Grandparent visitation is not available to grandparents of children given over for adoption, unless one legal parent is also a biological parent, or unless one adopting parent was related to the child by blood or marriage prior to the adoption. § 93-16-7, MCA.
Visitation is available to persons who become grandparetnts by virtue of adoption. § 93-16-7, MCA.
Siblings and other third parties have no common law or statutory right to visitation. Scruggs v. Satterfiel, 693 So.2d 924, 926 (Miss. 1997).
Venue is in the county where a child custody order was previously entered, or in the county where the child resides, if no custody order has been previously entered. § 93-16-3 (4), MCA.
Summons and service of process is had on the custodial parent(s), pursuant to Rule 81, MRCP.
TWILIGHT OF THE GODS
July 25, 2010 § 2 Comments
They were so powerful that they thought they were gods, immune from the misfortunes of mere mortals. They were Dickie Scruggs and all of his allies and fellow-travelers who rose to unparalleled power and wealth through bribery and corruption, until their un-god-like downfall. Their story is an epic Mississippi saga.
The next book on the grotesquerie of Dickie Scruggs and his ilk will be out soon. THE FALL OF THE HOUSE OF ZEUS, by Mississippian Curtis Wilkie, former BOSTON GLOBE foreign correspondent and current Ole Miss professor, is set to be released October 19, 2010, and the author will be at Square Books in Oxford that day to talk about his book and autograph copies.
Author Richard Ford made these comments about the book on the Square Books web site …
Addictive reading for anyone interested in greed, outrageous behavior, epic bad planning and character, lousy luck, and worst of all, comically bad manners. Wilkie knows precisely where the skeletons, the cash boxes and the daggers are buried along the Mississippi backroads. And he knows, ruefully — which is why this book demands a wide audience — that the south, no matter its looney sense of exceptionalism, is pretty much just like the rest of the planet.
I reviewed Alan Lange’s and Tom Dawson’s book on the Scruggs downfall here.
JUDGE EVANS’ MEMORIAL SERVICE
July 24, 2010 § Leave a comment
Chancellor Frank McKenzie attended the memorial service yesterday in Raleigh for Circuit Judge Robert G. Evans. He sent his observations in the form of a comment to another post, and I though they should be on the front page, so they would not be missed.
Chancellor Frank McKenzie, 19th District July 23rd, 2010
Bob donated his body to the University of Mississippi Medical Center for medical research. His wife, who pre-deceased him, did the same.
Everyone I know who practiced in Judge Evans’ court spoke of it as a privilege and an enjoyable experience. If I could sum up all the comments, it would be “Trying a case before Judge Evans was what trying a case should be like.” His wit, integrity, demeanor, experience and fairness will be missed.
REFLECTIONS ON THE CULTIVATED LAWYER
July 22, 2010 § Leave a comment
Tuesday I posted Felix Frankfurter’s advice to a young man who expressed an interest in preparing for a legal career. What I find particularly interesting about it is the esteemed Justice’s view of what it takes to be a good lawyer.
Here is what he said, paraphrased:
No one can be a truly competent lawyer without being a cultivated person.
A good lawyer is a well-read person because that is the only way to acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking, skills that only a truly liberal education can give.
No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great art and listening to great music.
The truly competent lawyer stocks his or her mind with the deposit of much good reading, and widens and deepens his or her feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe.
Early in my college career in Louisiana I announced my intention to go on to law school, and my father made an appointment for me to meet with a justice of that state’s Supreme Court for advice about the best course of study to prepare myself. The judge’s counsel was to get the broadest liberal arts education I could get, and to take courses that required writing and expressing my thoughts. He pointed out that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients.
The law is a great profession, but it requires not only a knowledge of and skill in its practice; it requires that lawyers use it ethically to influence and hopefully improve the lives of clients, whom they must represent “zealously within the bounds of the law,” and the larger society. The lawyer who is well read and cultivated — to use Justice Frankfurter’s term — is the lawyer who is best equipped to meet the demands of the profession.
SALE OF REAL PROPERTY IN AN ESTATE
July 21, 2010 § 6 Comments
[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year. Used with his permission.]
Vesting of title.
Real property vests directly in the heirs in an intestacy. Parker v. Newell, 245 So.2d 575 (Miss. 1971). It vests in the devisees in a testate estate. Anderson v. Gift, 126 So. 656 (Miss. 1930). Also See, In Re Estate of McRight, 766 So.2d 48 (Miss. App. 2000).
Abatement.
Even though the real property passes directly to the heirs or devisees, and not into possession of the Administrator or Executor (unless the Executor is directed by the will to sell the real property), it is subject to the claims of creditors and payment of estate expenses. The rules of abatement govern the order in which assetss of the estate must be first applied to such claims and expenses. Gordon v. James, 39 So. 18 (Miss. 1905); §§ 91-7-91 and -191, MCA.
Authority to sell real property.
When a petition to sell real property to pay debts is filed, all parties interested shall be cited by personal summons or publication. § 91-7-197. The burden of proof is on the petitioner to show that the land must be sold in preference to the personal property. Brown v. McAfee, 421 So.2d 1061 (Miss. 1982); Blum v. Planters’ Bank & Trust Co., 122 So. 784 (Miss. 1929). In such instances the Executor or Administrator would generally be the petitioner.
A will may grant the Executor the express authority to sell the real property. Glidewell v. Pannell, 130 So.2d 288 (Miss. 1930). If the Executor under the will is specifically instructed to sell the real property, there is no requirement for court approval. Davis v. Sturdivant, 19 So.2d 499 (Miss. 1944).
Execution of the deed.
If the property has vested in the heirs or devisees, the Administrator or Executor should not sign the deed. See the citations above. There is no title in the Administrator or Executor to convey. The heirs or devisees sign the contract, exeecute the deed, and receive the cash proceeds.
There are, however, two instances in which the personal representative will sign the deed. First, if the Executor is given the power of sale by the terms of the will, he or she should execute the will. Second, if the sale is by court order, the Executor or Administrator should sign the deed. §§ 91-7-187, -189, and -191, MCA. The practical effect of sale by court order is to divest the title out of the heirs or devisees, as the case may be.
Necessity of bond.
When real property is sold pursuant to a decree of the court, the Executor or Administrator shall execute a bond equal to the proceeds of the sale of the land. § 91-7-205, MCA. This code section does not apply to a sale by the heirs or devisees in whom title has vested.
There is an exception to the requirement of bond. If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficioaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond. § 91-7-205, MCA.
If an Executor or Administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land. § 91-7-207, MCA. An early case held that failure to give the bond voids the sale. Buckner v. Wood, 45 Miss. 57 (1871).
ADVICE TO A YOUNG PERSON INTERESTED IN A CAREER IN THE LAW
July 20, 2010 § 1 Comment
In May 1954, M. Paul Claussen, Jr., a 12-year-old boy living in Alexandria, Virginia, sent a letter to Mr. Justice Felix Frankfurter in which he wrote that he was interested in “going into the law as a career” and requested advice as to “some ways to start preparing myself while still in junior high school.” This is the reply he received:
My Dear Paul:
No one can be a truly competent lawyer unless he is a cultivated man. If I were you I would forget about any technical preparation for the law. The best way to prepare for the law is to be a well-read person. Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget about your future career.
With good wishes,
Sincerely yours,
[signed] Felix Frankfurter
From THE LAW AS LITERATURE, ed. by Ephraim London, Simon and Schuster, 1960.
I attended the Memorial Service today for Circuit Judge Bob Evans at the Smith County Courthouse in Raleigh.
Bob’s brother was a part of the service and he shared with us a framed note from a grammer school student that Bob kept on his desk.
The note stated: “Thank you for letting our class come to Court. I wanted to be a lawyer but after coming to Court it looks like being a lawyer is hard work. So I have decided to be a Judge.”
That was Bob’s sense of humor that he kept that on his desk.
Bob was a great Judge and he will be missed by many.