1,000
October 15, 2018 § 9 Comments
Last week the number of persons following this blog hit 1,000.
Thanks to all of you faithful readers. I hope this is making a difference for you.
Travelogue
October 12, 2018 § 2 Comments
Affidavits in Chancery
October 10, 2018 § 4 Comments
An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.
There are several affidavits that we use routinely in chancery:
- Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
- Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
- Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
- Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
- Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
- UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
- Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
- Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”
The Application for joint Custody
October 9, 2018 § Leave a comment
Justin Brown and Kristin Anklum had a child together, but were never married. They got into a custody dispute that brought them before a chancellor. Both petitioned the court for custody.
After three days of trial, the judge awarded them joint physical and legal custody. Brown appealed, complaining that it was error for the court to award joint custody.
In Brown v. Anklum, decided July 24, 2018, the COA affirmed. Judge Westbrooks wrote for the majority:
¶11. Brown argues that the parties have to make an express “application” asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:
(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.
(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.
¶12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider, 904 So. 2d 142, 148 (¶16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2).” Id. at 148 (¶15). Thus, a mere request to determine custody satisfies the “application” requirement. Id.
¶13. Accordingly, we find this issue is meritless.
Not a lot to ponder here, but it is a reminder that joint custody is almost always in the picture when you are litigating custody.
I wonder whether the application of law would be different if both parties pled or stipulated that joint custody would not be in the child’s best interest. My guess: that would not rule out an award of joint custody if the chancellor found that to be in the child’s best interest.
Judge Carlton, joined by Tindell, disagreed with the majority that the chancellor’s findings in favor of joint custody were supported by the evidence. You might find some of her rationale useful if you find yourself on that side of a similar equation.
The Duty of Child Support or Not
October 8, 2018 § 3 Comments
Lawyers try to get me to approve agreements for no child support, and usually exhaust themselves unsuccessfully in the effort. Here is the basis for my resistance:
Chroniger v. Chroniger, 914 So.2d 311, 316 (Miss. App. 2005):
¶ 17. Generally, the chancellor has wide discretion regarding modification of child support. Brawdy, 841 So.2d at 1178 (¶ 9). However, “[t]he welfare of children and their best interest is the primary objective of the law, and the courts must not accord to contractual arrangements such importance as to turn the inquiry away from that goal.” McManus v. Howard, 569 So.2d 1213, 1215–16 (Miss.1990). Further, “[c]hancellors should be reluctant to enter orders that do not require a non-custodial parent to pay an appropriate amount of child support,” and such orders “should be entered only in rare circumstances.” Brawdy, 841 So.2d at 1179 (¶ 16). The chancellor must additionally include detailed findings when entering an order denying child support from a noncustodial parent. See id.; cf. White v. White, 722 So.2d 731, 737 (¶ 41) (Miss.1997) (“This Court has consistently required chancellors to justify any departure from the statutory guidelines when setting child support awards in a detailed, written findings of fact and conclusions of law”). A substantial or material change in circumstances “not reasonably anticipated at the time of the previous agreement” may warrant modification of a child support award. Id. at 1178–79 (¶ 11).
Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991):
“There is another question here, apparently of first impression, as to whether the noncustodial parent can contract, under § 93–5–2, to end child support before his or her child reaches majority. Both parties cite Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989), which stated that “it is well recognized that a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise.” Nichols found that this age of majority, for purposes of child care and maintenance orders issued pursuant to §§ 93–5–23 and 93–11–65, was twenty-one (21). Nichols did not mention § 93–5–2, though it did recognize the ability of parents to contract to provide support beyond the age of 21. Nichols, 547 So.2d at 770. This Court did state, in Calton v. Calton, 485 So.2d 309, 310 (Miss.1986), that “[t]he duty to support children is a continuing duty on both parents and is a vested right of the child. Applying [this principle], it follows that parents cannot contract away rights vested in minor children. Such a contract would be against public policy.” A limited exception is a paternity action such as found in Atwood v. Hicks by Hicks, 538 So.2d 404 (Miss.1989).
“To hold that a parent may contract to cut off child support at age 18 would conflict with the language of § 93–5–2 and the public policy supporting it. See Bell v. Bell, 572 So.2d 841 (Miss.1990) (provision of divorce decree mandating children’s residence in certain town until children reach majority is unenforceable). We do acknowledge that a child may not have a right to support to age 21, depending on the acts or activity of the child, but certainly parents cannot by contract terminate any of the rights of the child. It is accepted that an agreed final decree may be modified. Further, while a property settlement, judicially approved, is always given great weight by this Court, the agreement and weight given may not extinguish the rights of a minor child and cut off child support prior to emancipation, all to the detriment and interest of the child. As the Court stated in Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990), “[c]hild support is awarded to the custodial parent for the benefit and protection of the child. Child support benefits belong to the child, and not the parent who, having custody, receives such benefits under a fiduciary duty to hold and use them for the benefit of the child.” We hold that a child support agreement, submitted to the court pursuant to § 93–5–2, which ends support for a child before that child reaches the age of twenty-one or is otherwise emancipated, is unenforceable as to the rights of the child.”
“Quote Unquote”
October 5, 2018 § 1 Comment
“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.” — Edward R. Murrow
“Thought that is silenced is always rebellious. Majorities, of course, are often mistaken. This is why the silencing of minorities is necessarily dangerous. Criticism and dissent are the indispensable antidote to major delusions.” — Alan Barth
“The world is kept alive only by heretics: the heretic Christ, the heretic Copernicus, the heretic Tolstoy. Our symbol of faith is heresy.” — Yevgeny Zamyatin
Reprise: Publication Process and its Plentiful Pitfalls
September 14, 2018 § Leave a comment
Reprise replays posts from the past that you may find useful today.
PERILS OF PROCESS BY PUBLICATION, EPISODE THREE
June 27, 2011 § 8 Comments
You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary. Unwary = those who don’t bother to read the rules.
MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.
Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.
The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:
- “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
- “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
- “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
- “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
- In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
- This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
- “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”
So here’s what you need to take away from this case:
First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.
Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.
Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.
This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.
Too Broke to Pay
September 12, 2018 § Leave a comment
Inability to pay is often asserted as a defense in contempt actions. All too often, though, it fails for insufficient proof.
The burden of establishing inability to pay is on the one claiming the defense. It must be shown “with particularity, and not in general terms.” That is the phrase used by the MSSC in McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), in which the court said:
¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make … child support payments as ordered, because of his inability to pay … his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, [Fn omitted] and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278. [Fn 3]
[Fn 3] While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For “[o]nce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).
¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.
Financial difficulty does not constitute inability to pay. As Professor Bell points out, ” … [C]ontempt may be avoided only on proof that the payor lived economically, paid only bare living expenses, and used all remaining funds to satisfy the support obligation.” Bell on Mississippi Family Law, 2d Ed., § 14.05[2][a]. In Lane v. Lane, 850 So.2d 122, 125-126 (Miss. 2002), the court addressed the appellant’s proof at trial of inability to pay:
¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.
¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.
Notice the language ” … absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie … .” That’s what it takes to establish inability to pay.
As Jimmy Lane also learned in his unsuccessful trial and appeal, liability for other debts does not excuse non-payment of support. In the ancient case of Kincaid v. Kincaid, 213 Miss. 451, 466-467, 57 So.2d 263, 265 (1952), the court laid out the rule, which is still good law 66 years later:
In Amis on Divorce and Separation in Mississippi, Section 206, the rule is stated that a husband may not ask for modification of the original decree without showing that he has performed it or that its performance has been wholly impossible, and in Section 279 the author discusses the rules laid down in Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712 on which both parties here rely, and points out that if the husband undertakes to exonerate himself because of his inability to pay his proof must conform to those rules, namely: ‘That he earned all he could, that he lived economically and paid all surplus money above a living on the alimony decreed to the wife. And such proof must be made with particularity and not in general terms. In such a case he must show what his earnings were and what his living expense was, including that of those legally dependent on him, but not of any other person. The payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because the wife’s right to alimony is a prior and paramount claim on his earnings. Nor will the fact that his earnings were insufficient to support himself and pay alimony exonerate him if he has other money or property which he could sell or encumber to get money with which to make the payments, even though it may be exempt.’ See also Millis v. State, 106 Miss. 131, 63 So. 344, and Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113. The foregoing views are not in conflict with what was said in Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368, on which appellant relies and which case is clearly distinguishable from the case at bar.
Whether the obligation was child support or alimony, the rules for proving inability to pay are the same.
Keep in mind the US Supreme Court’s ruling in Turner v. Rodgers, about which I posted at this link. You must put the contempt defendant on notice that his ability to pay may be an issue at the hearing, and you must provide a template (such as an 8.05 form) for him to provide the information necessary to his defense. And the court must make a finding of ability to pay before imposing incarceration.
The Un-Divorce
September 11, 2018 § 1 Comment
Many family lawyers complete their entire careers without filing an action to revoke a divorce. Most, like I, have handled a couple.
You can find the provision to revoke in MCA § 93-5-31. Here it is in its entirety:
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
So, all that is required is a joint petition and evidence satisfactory to the court that the parties have reconciled. I emphasized “required” because the language of the statute leaves a lot to the imagination.
For instance:
- What does “under such regulations and restrictions it may deem proper to impose” mean?
- What evidence is “satisfactory?
- Is a record required?
Most chancellors nowadays have enough to do without concocting arcane regulations and restrictions. I think it’s safe to assume that you can file that joint petition, set it for hearing, and put your parties on the stand for brief testimony to the effect that they have resumed living together and want to be restored to all of the benefits and emoluments of marriage. But that might not be enough for your favorite chancellor. You should inquire about the kind of evidence the judge wants to hear. Satisfactory evidence is in the eye and judgment of the beholder, and the appellate courts will give the judge’s ruling “great deference.”
What about a record? The case of Carlisle v. Allen, 40 So.3d 1265 (Miss. 2009) is illustrative. In that case, the parties had filed their joint application, but the husband died before it could be presented. The wife went ahead with the petition, over the estate’s objection. Here is how the MSSC described the evidence that the chancellor found to be satisfactory:
¶ 4. Janet filed for reconsideration and testified to the following facts regarding her reconciliation with Charles: the two had maintained their relationship after the divorce; Charles and Janet had continued to talk and go out together; Charles had a private telephone line put in Janet’s house so he could call her; the two had spent every weekend together from March 2006 until Charles’s death in June 2006; Charles had called her multiple times a day while she was recovering from a hip injury she incurred following Hurricane Katrina; Charles had plans to sell his house and move back into the former marital home with Janet; and the couple had opened a joint banking account.
¶ 5. Janet also testified that the reason the couple initially had divorced was that Janet had become sick during the marriage and Janet’s mother, Mary Davis, had encouraged her to get divorced. Janet testified that Charles did not come into the courtroom the day they were divorced. Regarding their relationship after the divorce, Janet stated, “we were always close. It was like we were never really divorced.” Once they filed the petition to revoke the divorce, the couple both began wearing their wedding rings.
¶ 6. On cross-examination, Janet testified that Charles had paid the bills at his house, and—other than the bill for the phone line Charles had placed in Janet’s home—Davis had paid the bills at her house. After Charles’s death, his body was found at his home by his housekeeper, Beverly Slaydon. Janet was at her home and was informed of his death by Slaydon.
¶ 7. Davis testified that the coroner sent Charles’s personal effects to Davis. She said she supposed the coroner did this because of her daughter’s relationship with Charles.
¶ 8. Slaydon testified that she had met Janet while working for Charles in his home. Slaydon testified that she often had talked to Janet on the phone, but Charles would not give her Janet’s phone number because it was “just for him and [Janet].” She testified that Charles was on the phone with Janet constantly, that Janet regularly had spent weekends at Charles’s house, and Charles and Janet would hold hands, talk, and laugh. In her opinion, Charles and Janet loved each other very much. Finally, Slaydon testified that the only other woman she ever saw at Charles’s home was Janet’s personal care provider, Patricia Beard.
¶ 9. Beard cared for Janet as she recovered from a hip injury and, during that time, drove Charles and Janet to Poplarville to file the petition to revoke their divorce. She saw Charles sign the joint application and take it to the courthouse. She testified to seeing Charles three to four times per week, and said that Charles would bring Janet lunch, flowers, or presents. She stated that Charles and Janet would spend hours together on the phone. In her opinion, Charles and Janet had a very loving and affectionate relationship. It was her understanding that the couple had wanted to have their divorce revoked and that Charles had planned to return to the marital home. She stated, “[Charles] never felt that they were divorced. He wanted to be with her. He told me that she was his life partner.” Finally, Beard testified that Charles had asked her to find his wedding band, and she had seen him wearing it.
¶ 10. Carlisle testified that he was a close friend of Charles’s, and he had known him since 1969. He stated that he had prepared the application to revoke the divorce, but that it was his understanding that Charles “never intended to marry [Janet] or set aside the divorce.” He further testified that he previously had prepared four or five applications to revoke the divorce for Charles, but Charles had thrown those applications away. Carlisle thought Charles felt cheated out of the marital home in the divorce, and was using the revocation of divorce to “recover what he thought was rightfully his.”
¶ 11. Carlisle further testified that he regularly had visited Charles and that he never had noticed signs of anyone staying with him. When he visited Janet after Charles’s death, Carlisle said the first thing Janet told him was that she was not going to pay for the funeral arrangements. As a result, he made a number of the funeral arrangements personally. However, Janet testified that Carlisle volunteered to make the funeral arrangements and refused to allow her to pay for the service. Finally, Carlisle testified that Charles had a personal relationship with a female attorney before and after Hurricane Katrina. While he did not know the woman’s name, it was someone other than Janet.
That’s pretty detailed, but considering that it became contested it was helpful for the wife that it was so detailed.
A highlight of Carlisle is that death does not abate the action.
The effect of a divorce is to return both spouses to single status. Revocation of the divorce does not have the result of returning the parties to marital status during the time that the divorce judgment was in effect. “Nothing in this statute authorizes the chancellor to find that this statute revokes the prior decree to such an extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. The purpose of the statute is to encourage the reconciliation of broken marriages, not to place the parties in the position of unknowingly giving offense to the marital status once it has been restored.” Devereaux v. Devereaux, 493 So.2d 1310, 1313 (Miss. 1986). Revocation, then, is prospective in its application even though the divorce judgment is revoked.
The Better Chancery Practice Blog 