A Tax Benefit for Adoptions
August 22, 2018 § Leave a comment
For those of you who handle adoptions, there is good news you can pass on to your client(s):
HB 1566, effective January 1, 2018. increases the income tax credit for adoption expenses from $2,500.00 for each dependent child legally adopted to $5,000.00 for each child legally adopted. An income tax credit is also allowed in the amount of $5,000.00 for each child legally adopted through the Mississippi Department of Child Protection Services.
A taxpayer may claim only one of these credits for each child adopted. The carry forward under current law for the adoption expense credit is three years. The carry forward is increased to five years for the adoption care credit and is five years for the credit for an adoption through the Mississippi Department of Child Protection Services. The credits are repealed effective January 1, 2020.
This is an advantageous benefit since a credit reduces taxes dollar-for-dollar.
The bill was not signed until April, but the January effective date means that it is available for 2018 filings.
Money is Personal
August 21, 2018 § 2 Comments
MCA 91-7-1 states that a will may me probated, and letters testamentary issued, in the county where:
- The testator or decedent had a fixed place of residence; or
- If she had no fixed place of residence and land is devised under the will, then in the county where the land, or some part of it, is located; or
- If the testator had no fixed place of residence and only personal property is disposed of in the will, then in the county where the testator dies, or where some part of the property may be.
A lawyer talked with me about a problem he ran into with 3, above. In his case, the decedent was a resident of another state, but had money on deposit in Mississippi. The lawyer attempted an ancillary probate to get the money for the beneficiaries, but the chancellor would not admit the will to probate in the county of the deposit because the judge was not satisfied that the funds met the definition of personal property within the meaning of the statute.
MCA § 1-3-41, defines personal property as follows:
The term “personal property,” when used in any statute, shall include goods, chattels, effects, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.
All that, but no direct mention of cash, deposits, or funds.
The Mississippi Legislature cured the problem with SB 2508, effective July 1, 2018, which clarified the statute’s definition to embrace “all tangible and intangible personal property” and “cash, deposit accounts, and promissory notes.”
That should take care of that.
Comments on Undue Influence
August 20, 2018 § Leave a comment
Last week we visited the Saget estate case with its undue-influence issues. Here are several observations:
- This case was before the COA for the second time. The first appeal was dismissed by the COA because the judgment disposed of fewer than all the issues raised in the case (i.e., the will contest), and there was no R54 certification. After the dismissal, the chancellor filed the certification, and the second appeal was not dismissed by the COA.
- If you have a judgment from the trial court that disposes of fewer than all of the issues, or grants relief to fewer than all of the parties, you must make sure that the judge certifies per R 54 that there is no just cause to delay an appeal if you plan or anticipate an appeal. If the judge does not do it on his own, file a timely R59 motion asking him to do so. It will save time and expense.
- This case is an excellent exposition of the law in this area. A couple of previous posts on the point are here (will contests) and here (inter vivos gifts between spouses).
- Again, on lack of findings (mentioned in Fn 6), don’t be afraid to file a R59 motion asking for more specific findings if you fear that you might get a remand based on what the judge did rule. If you want to soften the blow to your already-overworked chancellor, you can offer to prepare proposed findings of fact and conclusions of law.
- Undue influence cases have a definite framework of law that you must build your case on, and they are quite fact-intensive. Speculation and supposition will not win the case. It takes strong, definite proof.
The Not-So-Mobile Home
August 15, 2018 § 1 Comment
In days of yore, mobile homes really were truly mobile. The wheels stayed on them, right there underneath in the cool dirt where Fido sleeps and lost yard toys go to be seen never more. Even then, though, mobility became more of a concept than reality as years scrolled by, tires dry-rotted, and the “trailer” settled into rust and decay.
In more modern times, mobile homes came to be settled on more permanent foundations, sans wheels, and even became affixed to the land. The legislature even passed laws allowing one to elect whether to treat the so-called mobile home as personal property, like an auto, or as a fixture on the land. Only problem, as you will know if you ever got tangled up in that kind of litigation, the law was not clear about how and when one made that election.
To the rescue came the Mississippi Legislature, which adopted HB 827, signed by the governor on March 19, 2018, and to take effect January 1, 2019. It offers an alternative process that may simplify the process.
Here is a summary of the new law from material presented by Senator Gray Tollison to Summer School for Lawyers:
This bill deals with the manner in which ownership of a manufactured or mobile home (manufactured home) is to be legally recorded as real property and as personal property. The bill authorizes the present system to remain in place for those homeowners, lenders, title insurers and retailers who prefer to use the current procedures in place today. It creates a new process that will be preferred and followed by other homeowners, lenders, title insurers and retailers.
Manufactured homes are generally personal property and are titled similar to motor vehicles by certificate of title; however, under certain circumstances a manufactured home may be so permanently affixed to the land that the law treats it like a site-built house as an improvement to real estate. Whether a manufactured home is personal property or real estate is very important to the homeowner, lender and title insurer. This bill contains specific provisions as to when a manufactured home is considered real estate for both ad valorem tax and bankruptcy law purposes. These provisions respond to questions raised by some lenders and title insurers as to whether a manufactured home should be considered real estate or personal property. This will assist lenders in perfecting security interests. It will also allow title insurers to rely upon a more specific procedure for addressing issues concerning the ways in which manufactured homes may be real property or personal property.
This bill authorizes the homeowner to elect to:
Declare at the time of registration that the manufactured home is to be classified
as real estate for ad valorem tax purposes only as authorized under current law, or
To permanently retire the title to the manufactured home by filing an affidavit of
affixation.
If the homeowner elects to permanently retire the title to the manufactured home, the manufactured home becomes a part of the real estate for all purposes until an affidavit of severance or affidavit of destruction is filed of record. If the homeowner files an affidavit of severance, the manufactured home is retitled and treated as personal property.
Attorneys or title companies closing these transactions will examine the liens reflected on the certificate of title (for personal property) and in the land records (for real property) to insure priority of liens.
Evidence Resurrected
August 14, 2018 § 5 Comments
It was back in 2012 that I reported the death of Evidence as a required course at both the Ole Miss and MC law schools. You can re-visit that post at this link, if you care to.
Among my several points bewailing that Evidence was no longer a required course was this:
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
Well, the worm has, so to speak, turned. In her address to the Ole Miss law alumni at the Mississippi Bar Convention last month, Dean Susan Duncan reported that Evidence is returning to the OM Law curriculum as a required course. A legislator with whom I visited told me that MC Law is following the same path.
I would not want to take my ailments to a doctor who has not studied Human Anatomy. Evidence is the Human Anatomy of the legal profession.
Some Ins and Outs of Recusal
August 13, 2018 § 3 Comments
Elle Adams filed a federal suit against the chancellor in her custody/contempt case, and, on the eve of trial filed an “emergency motion” for recusal, reasoning that the judge would be biased against her because of the suit. Elle also made other accusations against the chancellor.
In its June 12, 2018, decision in Adams v. Rice, the COA by Judge Barnes rejected Elle’s arguments. Since the opinion is a nice précis on the law of recusal, I am excerpting it here:
¶15. Elle argues that the chancellor should have recused herself because Elle had filed a federal lawsuit and judicial complaint against her alleging bias, discrimination, and misconduct. [Fn omitted] Elle reasoned that her legal actions against the chancellor would make her “even more biased” and “incapable of making appropriate decisions”; thus, recusal was necessary.
¶16. Mississippi Rule of Appellate Procedure 48B explains the proceedings on a motion to disqualify the trial judge. If a trial judge denies a motion seeking his or her recusal, the movant may seek review of the judge’s action by the Mississippi Supreme Court. Id.
¶17. The day before the hearing, Elle filed a pro se emergency motion to recuse the chancellor before the supreme court, making many of the same allegations as on appeal. Additionally, she argued that the chancellor’s “hostile acts” infringed upon her civil rights because she was denied a Spanish interpreter at the March 31, 2016 hearing. Further, she claimed the chancellor and her attorney had “ex parte communication” which was “disparaging and inappropriate,” questioning her ability to understand English, among other matters. The Mississippi Supreme Court dismissed the motion the same day, without prejudice, because Elle had failed to first seek recusal from the chancellor herself before asking for the supreme court’s review and failed to serve the chancellor with the motion. [Fn omitted]
¶18. The rule concerning disqualification of a judge is contained in Canon 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. It states that “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances . . . including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party . . . .” The Mississippi Supreme Court has held “that the objective reasonable person knowing all of the circumstances is the proper standard” to determine if a judge should have recused herself. Dodson v. Singing River Hosp. Sys., 839 So. 2d 530, 532-33 (¶9) (Miss. 2003). “[R]ecusal is required when the evidence produces a reasonable doubt as to the judge’s impartiality.” Id. at 533 (¶13). However, it is presumed that judges are qualified and unbiased. Id. at (¶10). The appellate court applies a manifest-error standard when reviewing a judge’s refusal to recuse. Sullivan v. Maddox, 122 So. 3d 75, 81 (¶15) (Miss. Ct. App. 2013) (citing Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss. 1997)).
¶19. Elle claimed the chancellor made disparaging comments about her and her family in open court and “ex parte communication” with one of Elle’s numerous attorneys before the chancery court. Also, apparently because of the chancellor’s unfavorable ruling, Elle claims that the chancellor had an “unconscious bias” against her as exhibited at the March 31 hearing (which Elle did not attend). Further, Elle argues that the chancellor could not be impartial knowing that Elle had filed a federal lawsuit and state bar complaint against her. Elle requests the judgment against her be reversed due to the alleged evidence of bias.
¶20. At the March 31, 2016 hearing, the chancellor acknowledged for the record that while she had not been served with a federal lawsuit, she was aware that Elle had filed one in Alabama against her, John, and the cities of Starkville and Columbus, Mississippi. The chancellor stated for the record that she read the complaint but found it proper to move forward with the hearing.
¶21. After reviewing the transcripts, we do not find that the chancellor made any disparaging personal comments about Elle. Nor did the transcript indicate any evidence of bias towards Elle, who failed to attend two hearings; one on motions that she filed on March 22, and the final hearing on March 31. However, the chancellor did find Elle’s “attempts to manipulate the judicial system . . . appalling.” We cannot say that it was disparaging or prejudicial that the chancellor reprimanded Elle on the record for not pursuing her own defense. Moreover, Elle did not file a motion to recuse the chancellor in the chancery court even after the Mississippi Supreme Court entered its order. Accordingly, the issue is barred.Further, there is no evidence that the chancellor’s impartiality might be reasonably questioned; therefore, the issue is also without merit.
Not mentioned in the opinion is Uniform Chancery Court Rule 1.11, which spells out the procedure required to move for recusal:
Any party may move for the recusal of a judge of the chancery court if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.
Elle never filed such a motion in the trial court.
In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.
It’s troubling to me when litigants try to manipulate the system to their advantage by making attacks on the judge assigned the case. Here, Elle tried to create grounds for recusal by filing the federal lawsuit and the judicial-performance complaint. The chancellor rightly characterized the efforts as “appalling.” I could not agree more.
It’s troubling to me when anyone, seeking to advance their own agenda, attacks the judge and the ruling and tries to negate it rather than pursuing appeal.
Those Who Run Toward Danger
August 10, 2018 § Leave a comment
In a post I titled Running Toward, back in 2014, I called attention to those at the Boston Marathon bombing who ran to help the injured, oblivious to the danger, instead of running away. There had already been two bombs that sprayed the crowd with deadly shrapnel. Who knew how many more there were?
Recently I ran across this moving piece in The Sun magazine:
Early one morning several teachers and staffers at a Connecticut grade school were in a meeting. The meeting had been underway for about five minutes when they heard a chilling sound in the hallway. (We heard pop-pop-pop, said one of the staffers later.)
Most of them dove under the table. That is the reasonable thing to do, what they were trained to do, and that is what they did.
But two of the staffers jumped, or leapt, or lunged out of their chairs and ran toward the sound of bullets. Which word you use depends on which news account of that morning you read, but the words all point in the same direction — toward the bullets.
One of the staffers was the principal. Her name was Dawn. She had two daughters. Her husband had proposed to her five times before she’d finally said yes, and they had been married for ten years. They had a vacation house on a lake. She liked to get down on her knees to paint with the littlest kids in her school.
The other staffer was a school psychologist named Mary. She had two daughters. She was a football fan. She had been married for more than thirty years. She and her husband had a cabin on a lake. She loved to go to the theater. She was due to retire in one year. She liked to get down on her knees to work in her garden. . . .
Dawn and Mary jumped, or leapt, or lunged toward the sound of bullets. Every fiber of their bodies — bodies descended from millions of years of bodies that had leapt away from danger — must have wanted to dive under the table. . . .
But they leapt for the door, and Dawn said, Lock the door after us, and they lunged right at the boy with the rifle.
Dawn and Mary, Brian Doyle, August 2013
I commend The Sun to anyone who sees value in having their assumptions and preferences challenged and questioned.
Ineffective Assistance of Counsel in Chancery
August 7, 2018 § 2 Comments
Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?
That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.
In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:
¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.
¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.
The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.
I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.
As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.
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