The Requirement of Particularity in an Order or Judgment
May 6, 2020 § Leave a comment
It’s fundamental that, in order for an order or judgment to be enforceable, it must be complete on its face, and the obligation imposed must be specified. It can not require reference to extraneous information to determine the obligation. For example, an order that the obligor pay 14% of his adjusted gross income is unenforceable since it requires that we determine from extraneous sources what 14% of his income might have been.
The principle was brought to the fore in the COA’s decision reversing a chancellor’s adjudication of contempt in Lindsay v. Lindsay and Pickering, handed down April 7, 2020. Judge Lawrence wrote for the majority:
¶23. “Civil contempt orders enforce a private party’s rights or compel compliance with a court’s order.” Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss. 2011). “Failure to comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct. App. 2011). “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself[,] leaving open no matter or description or designation out of which contention may arise as to meaning.’” Davis v. Davis, 829 So. 2d 712, 714 (¶9) (Miss. Ct. App. 2002) (quoting Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989)). “A contempt citation is proper only when the contemner has wilfully and deliberately ignored the order of the court.” Lewis v. Pagel, 172 So. 3d 162, 178 (¶39) (Miss. 2015) (quoting Gaiennie v. McMillin, 138 So. 3d 131, 136 (¶13) (Miss. 2014)). Further, “[t]his Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence.” Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).
¶24. “A defendant may avoid a judgment of contempt by establishing that he is without the present ability to discharge his obligations. However, if the contemnor raises inability to pay as a defense, the burden is on him to show this with particularity, not just in general terms.” Varner, 666 So. 2d at 496 (citation omitted).
¶25. Here, the trial court held Bruce in contempt of the October 13, 2016 written temporary order entered nunc pro tunc to June 13, 2014. At the June 13, 2014 hearing, the court examined Bruce’s Rule 8.05 financial statement and heard testimony from both Bruce and Paula. At the close of the hearing, Judge Steckler indicated his ruling was not complete, stating, “But I want to meet again with both attorneys early next week and go over it and then we’ll finish this order.” He continued “[B]etween now . . . and the time that I enter another order, he is to continue to pay everything that he’s paying now.” (Emphasis added). His bench ruling made no mention of the exact amount of child support, the exact amount of spousal support, home mortgage notes, house maintenance for the pool or yard, or any other specific amount for a specific obligation that Bruce was to pay.
¶26. What Bruce was actually paying at the time of June 13, 2014 hearing is unclear from the record. His Rule 8.05 financial statement from that hearing shows he was paying over $14,000 per month in expenses despite only having $10,260.76 in net income. Further, his Rule 8.05 financial statement does not mention any amount of child support or spousal support, both of which he was later held in contempt for not paying. The vague nature of the
temporary order continued with the new chancery judge’s equally vague ruling—the October 3, 2016 written order—that Bruce “continue to pay an[y] and all debts, obligations and expenses he was paying prior to June 13, 2014.” The specific amounts for what specific obligations that Bruce was required to pay and for which he was held in contempt for not paying were not “complete within the judgment.” In other words, Bruce was held in contempt and incarcerated for not paying obligations that were never specifically set forth within the four corners of the oral ruling on June 13, 2014, or the written temporary order entered by a different judge on October 3, 2016. The written order simply used similar language given by Judge Steckler from the June 13, 2014 hearing. If we looked only to the temporary orders, it would be impossible to know what exactly Bruce had been ordered to pay and in what amounts. The orders are vague and confusing. At the second contempt proceeding on October 19, 2017, before he was ordered to be incarcerated, Bruce said as much when he argued pro se to the court the following:
My point, I guess, is that it’s certainly not willful. There’s a lack of money. Additionally, I think there was definitely confusion over this to this day, but there certainly was confusion through the different meetings, conferences . . . and hearings and no written order by Judge Steckler.
¶27. Simply put, the language in the oral order from the bench and the written order entered over two years later never mention any specific type of obligation or in what amount that obligation is to be paid. In fact, the words child support, spousal support, home mortgage, and lawn or pool maintenance, or any specific monetary amounts for any of those obligations, are never mentioned in either orders. At the June 13, 2014 hearing, the court simply said to “pay everything that he’s paying now[,]” and the October 3, 2017 written order simply stated, “[P]ay any and . . . all debts, obligations, and expenses he was paying prior to June 13, 2014.” This Court has made clear that the “judgment must be complete within itself[,] . . . leaving open no matter or description or designation out of which contention may arise as to meaning.” Davis, 829 So. 2d at 714 (¶9) (quoting Wing, 549 So. 2d at 947). The meaning of the oral order from the bench on June 13, 2014, and the written order trying to reduce to writing that oral order was not clear and certainly not “complete” within itself. Orders from courts, whether oral or written, should not be so vague as to prevent a reasonable person from understanding its clear legal effect or the potential for contempt in failing to abide by its terms. Those terms should be clearly defined within the four corners of the order in an effort to cause “contention [that] may arise as to meaning.” Id. The temporary orders in this case were overly vague, ambiguous, and unclear as to exactly what was required to be paid. Therefore, the order of contempt against Bruce in the amount of $105,470.67 is hereby reversed.
Lawyers have presented PSA’s and agreed orders with flaws similar to that spelled out above, and I have sent them back to the drawing board, although I do confess to signing off on a few when the lawyers whined enough to wear down my resistance. I did point out, however, that if it came back before me for enforcement, the obligation would clearly be unenforceable for the same reasons set out in Lindsay.
The Unobjection and its Effect on the Record
May 5, 2020 § 2 Comments
What happens when one fails to object to clearly objectionable evidence? Should the chancellor even consider that evidence? Or is it to be considered along with all other competent evidence?
Those were questions that arose out of a trial in which heirs of Mary Cook sought to set aside deeds and financial transactions in favor of John Ward based on Ms. Cook’s incompetence. During the trial testimony was elicited by Ward’s own attorney, who made no objection to the hearsay responses. After the chancellor ruled against Ward, he appealed, and one ground was admission of the hearsay.
The COA affirmed in Ward v. Est. of Cook, et al., decided April 21, 2020. Judge Jack Wilson wrote for the unanimous court:
¶22. Ward next argues that the chancellor erred by considering hearsay testimony regarding what a bank teller told Lynn Cook III. However, Ward failed to object to the testimony at trial. Indeed, although Ward fails to provide a relevant record citation, it is appears that he is complaining about testimony that his own attorney elicited. A party cannot complain about testimony that his own attorney elicited. Shaheed v. State, 205 So. 3d 1105, 1111-1112 (¶20) (Miss. Ct. App. 2016). In addition, “[w]hen . . . hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under [Mississippi Rule of Evidence] 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal.” Swinney v. State, 241 So. 3d 599, 610 (¶40) (Miss. 2018) (quoting Rubenstein v. State, 941 So. 2d 735, 764 (¶113) (Miss. 2006)). Finally, hearsay evidence that is admitted without objection becomes competent evidence for the trier of fact to consider. Shaheed, 205 So. 3d at 1110 (¶16). Therefore, this issue is entirely without merit.
Notice that the case law says that the hearsay becomes competent evidence for the court to consider, NOT that the chancellor must give it the same weight as other evidence. The chancellor could still find it to have little probative value, or find it not to be credible because of its hearsay nature. The chancellor is the finder of the weight and credibility to be assigned to evidence. In one case I had involving a will, an attorney sat mute through the examination of a witness by his opponent, not asserting a single objection, although nearly every question elicited hearsay testimony. I found that witness’s testimony not to be credible and discounted almost all of it.
Always be mindful in the course of a trial that you are not there solely to obtain a favorable ruling. You are also there to make a record that will win the case on appeal. You can’t do the latter if you fail to make timely objections. Oh, and you have to make sure that everything you need to prevail is in the record, as I pointed out in this old post.
A Nice Attorney’s Fees Package
May 4, 2020 § Leave a comment
It’s nice and helpful when an appellate court decision gives us a concise, authoritative statement of the law.
That’s what the COA did in the case of Krohn v. Krohn, decided April 21, 2020, on the issue of attorney’s fees, particularly in contempt cases. Here is what Judge McDonald wrote for the majority:
¶20. In assessing an award of attorney’s fees, the chancery court first determines the type of action brought and then uses the appropriate method for a calculation of any attorney’s fees to award. Regarding contempt actions, “[w]hen a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Garner v. Garner, 283 So. 3d
120, 142 (¶98) (Miss. 2019). “Fees awarded on this basis, though, should not exceed the [attorney’s time and] expenses incurred as a result of the contemptuous conduct.” Heisinger v. Riley, 243 So. 3d 248, 259 (¶45) (Miss. Ct. App. 2018). The court “shall make the award [for contempt actions] based on the information already before it and the court’s own opinion based on experience and observation[.]” Taylor v. Timmons (In re C.T.), 228 So. 3d 311, 319 (¶21) (Miss. Ct. App. 2017) (quoting Miss. Code Ann. § 9-1-41 (Rev. 2014)). A successful party in a contempt action need not show that he or she was unable to pay their attorney. Wilkinson v. Wilkinson, 281 So. 3d 153, 167 (¶52) (Miss. Ct. App. 2019).
¶21. In other matters, e.g., motions for modifications, an award of attorney’s fees is based only on the successful party’s inability to pay; in such cases, “the Mississippi Supreme Court established several factors [in McKee, infra,] to determine the proper amount of attorney’s fees to award in domestic cases.” Chism v. Chism, 285 So. 3d 656, 667 (¶39) (Miss. Ct. App. 2019). “The McKee factors state that an award of attorney’s fees ‘should be fair, should
compensate only work actually performed, and should be based upon a finding that the work was reasonably required and necessary.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 12.02[l], at 359 (1st ed. 2005) (discussing McKee v. McKee, 418 So. 2d 764 (Miss. 1982))). The McKee factors include the following:
(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) novelty and difficulty of issues in the case, (4) the
responsibility required in managing the case, (5) time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case. Baumbach v. Baumbach, 242 So. 3d 193, 208-09 (¶54) (Miss. Ct. App. 2018) (Fair, J., concurring in part and dissenting in part). This Court permits an award of attorney’s fees “in a divorce case where the requesting party establishes an inability to pay.” Stewart v. Stewart, 2 So. 3d 770, 776 (¶18) (Miss. Ct. App. 2009) (quoting Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999)). “However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id. (citation omitted).
¶22. In Wilkinson, we acknowledged that although both parties were found in contempt, the court can still award one party attorney’s fees. Wilkinson, 281 So. 3d at 167 (¶55). There, Rod and Stephanie Wilkinson were both found in contempt for making derogatory remarks; therefore, the court declined to award attorney’s fees to either party on that issue. Id. at (¶53). However, Rod argued Stephanie could not receive any attorney’s fees because she was found in contempt on one issue (the unclean hands doctrine [Fn omitted]), but this court was not persuaded by Rod’s argument. Id. at (¶55). In addition to the contempt for derogatory remarks, the court found Rod in contempt regarding child support and visitation. Id. at 159 (¶5). We affirmed the award to Stephanie of $3,700.00 in attorney’s fees for Rod’s contempt of child support and visitation requirements. Id. at 169 (¶62).
¶23. In Wilkinson, we also found the chancery court properly analyzed the attorney’s fees for the contempt actions and other actions separately. For matters other than contempt, the court used the inability to pay standard to determine attorney’s fees, which incorporated McKee factors in determining Stephanie’s inability to pay. Id. at (¶58). Therefore, we affirmed the award of $4,933.00 in attorney’s fees not attributable to the contempt actions.
Id. at 169 (¶62).
¶24. In this case, like Wilkinson, we find no error in the chancery court’s award of attorney’s fees for Karen, even though she was found in contempt on a minor issue. Here, the chancery court found Melvin in willful, wanton, and contumacious contempt for his failure to pay child support and failure to pay alimony. The court also found Melvin in contempt for his failure to immediately obtain life insurance in the amount of $50,000.00. The court only found Karen in contempt for her failure to produce a copy of the child’s shot records upon Melvin’s request. Therefore, the court did not err in awarding Karen attorney’s fees. However, the court did err in the amount of attorney’s fees it awarded Karen.
¶25. The record shows attorney’s fees based on the cumulative amount of time spent on the contempt actions and modifications matters. Karen’s pleadings involved issues other than contempt, such as modification of custody and visitation. Prior to the final hearing, the parties went to court on these matters and resolved all but the contempt matters.
¶26. The chancery court erred in awarding Karen attorney’s fees for her representation in all these matters. The only factor that the chancery court addressed in ruling to award all attorney’s fees to Karen was the number of times the parties have been to the court. Without more, we find that the chancery court’s decision to award attorney’s fees should be reversed and remanded for proper determination of the amount of attorney’s fees attributable to the contempt actions and the amount of attorney’s fees owed, if any, for the other matters.
“Quote Unquote”
May 1, 2020 § Leave a comment
“The majority of people believe in incredible things which are absolutely false. The majority of people daily act in a manner prejudicial to their general well-being.” — Ashley Montagu
“Believe nothing, O monks, merely because you have been told it … or because it is traditional, or because you yourselves have imagined it. Do not believe what your teacher tells you merely out of respect for the teacher. But whatsoever, after due examination and analysis, you find to be conducive to the good, the benefit, the welfare of all beings—that doctrine believe and cling to, and take it as your guide.” — Buddha, attributed
“I am not going to question your opinions. I am not going to meddle with your belief. I am not going to dictate to you mine. All that I say is, examine; enquire. Look into the nature of things. Search out the ground of your opinions, the for and the against. Know why you believe, understand what you believe, and possess a reason for the faith that is in you. … But your spiritual teachers caution you against enquiry — tell you not to read certain books; not to listen to certain people; to beware of profane learning; to submit your reason, and to receive their doctrines for truths. Such advice renders them suspicious counsellors. By their own creed you hold your reason from their God. Go! ask them why he gave it.” — Frances Wright
Commingling and Family Use
April 29, 2020 § 1 Comment
Allison Gaskin inherited two parcels of property during her marriage to her husband, Tony.
When it came time for a divorce, Tony took the position that the two parcels were marital, subject to division. Allison disagreed. After trial, the chancellor found the property to be part of Allison’s separate estate. Tony appealed.
In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson wrote the unanimous opinion:
¶18. During the course of the marriage, Allison inherited interests in two parcels of land: the first was a fourteen-acre tract of land referred to by the parties as the “White House property,” and the second was a sixty-five-acre tract located at 3506 Highway 18 in Rankin County. The chancellor determined that the White House property had been commingled and converted to marital property because Tony had purchased Allison’s brother’s one-half interest in the property and had “made significant contributions in maintaining the property.” The chancellor further found that the property “ha[d] been used by Tony and the boys for hunting and fishing.” The White House property was valued at $160,000, and the chancellor awarded the property to Allison as part of the division of marital assets.
¶19. Regarding the sixty-five-acre tract of land located at 3506 Highway 18, Tony testified that he occasionally bush-hogged the property and stored some Gaskin Plumbing equipment on the property. The parties stipulated that the total value of this parcel was $607,000. In contrast to the White House property, the chancellor found that the sixty-five-acre parcel Allison inherited had not been “commingled to the extent necessary to classify it as marital
property for the purpose of division between the parties.”
¶20. On appeal, Tony asserts that the chancellor erred in finding that the sixty-five-acre tract of land constituted nonmarital property. He contends that the evidence was clear that he spent substantially more time and effort maintaining the sixty-five-acre property than he did maintaining the White House property. Tony also asserts that he would hunt, fish, and play sports on the sixty-five-acre tract with the boys. He contends that these activities effectively commingled the property and converted it to marital property, not Allison’s separate nonmarital property.
¶21. “When dividing marital assets, the chancery court must first classify the property as marital property or nonmarital property.” McDonald v. McDonald, 115 So. 3d 881, 885 (¶12) (Miss. Ct. App. 2013) (citing Stewart v. Stewart, 864 So. 2d 934, 937 (¶12) (Miss. 2003)). “Marital property is defined as ‘any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.’” Id. By contrast, “[i]nter vivos gifts and inheritances are considered nonmarital property unless they have been commingled.” Id. at 886 (¶12) (citing Everett v. Everett, 919 So. 2d 242, 247 (¶19) (Miss. Ct. App. 2005)). “Assets which are classified as nonmarital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Stewart, 864 So. 2d at 937 (¶12) (quoting Boutwell v. Boutwell, 829 So. 2d 1216, 1221 (¶20) (Miss. 2002)).
¶22. Importantly, “we will not substitute our own judgment for that of the chancellor.” McDonald, 115 So. 3d at 886 (¶16). Here, we cannot say that the chancellor erred in finding that the sixty-five-acre property inherited by Allison and her brother remained nonmarital property despite Tony’s assertions that he spent substantial time maintaining the parcel and that he spent time on the property with the couple’s boys. The chancellor found that Tony’s
occasional bush-hogging, equipment storage, and recreational activities with the family were not sufficient to commingle the property with the parties’ marital assets, such that the land should be classified as marital property for the purpose of equitable division. We find that the chancellor did not abuse his discretion in treating the sixty-five acres as nonmarital property, and this issue is without merit. [Fn omitted]
I think the law of so-called “family use” which is the same as the commingling argument here, could use some attention from the MSSC. We have this case at one end, where hunting, fishing, bush hogging, and storing business equipment is inadequate to bring it into the marital estate. And on the other end we have a case such as Rhodes v. Rhodes, in which use of a separate beach condo once a year by the family and the wife’s selection of drapes for it converted it into a marital asset. I whined about Rhodes in this old post.
Air Alimony
April 28, 2020 § Leave a comment
Most of the cases that come stumbling through my court involve people living literally on the brink of financial catastrophe. Minimal income and maximal debt.
That was the situation of Morgan and Melanie Ewing when they appeared before the chancellor in 2015. The chancellor proceeded through equitable distribution and, notwithstanding their financial straits, ordered Morgan to pay Melanie child support and alimony. Morgan appealed, and the COA reversed and remanded to require Ferguson findings, which necessitated a review of the other financial awards as well.
On remand the chancellor at first rendered an order making Ferguson findings and reinstating the original awards. Morgan filed what must have been a R59 motion (the COA refers to it as “a motion for reconsideration, a motion to set aside the judgment …”), which the chancellor granted, setting the matter for a full hearing. Following the hearing, the chancellor entered his judgment essentially identical to what he had done before. Unhappy with the outcome, Morgan again appealed.
In Ewing v. Ewing, decided April 7, 2020, the COA affirmed. We looked at the decision on the issue of attorney’s fees in a previous post. Here is how Judge Barnes addressed the issue of alimony:
¶9. In the prior appeal, this Court “affirmed as to the finding of a need for periodic alimony” but remanded for reconsideration of the amount in light of Morgan’s standard of living. Ewing, 203 So. 3d at 715-16 (¶¶29-30). On remand, the chancery court upheld the award of periodic alimony, concluding that “the award of $500.00 per month in periodic alimony is proper after analyzing Morgan’s other financial obligations and his ability to maintain a decent standard of living.” The chancery court specifically determined that even after Morgan paid child support, alimony, and the monthly installment for attorney’s fees, he “would still net $1,629.52 each month based upon his current income, which is sufficient considering Melanie has [four] children living with her and he only has himself.” [Fn 5] Morgan argues that the chancery court’s award of permanent periodic alimony to Melanie “was
unreasonable in light of [his] inability to pay and the income of Melanie.”
[Fn 5] Although Morgan notes the chancery court’s error in the order regarding the number of children (i.e., four versus five children), we agree with Melanie that because child support was not calculated based on five minor children, this is simply a scrivener’s error that has no substantive effect on either party. While not affecting our analysis of this issue, we have noted a minor discrepancy in the court’s calculation of Morgan’s net monthly income, which we will address further when we address the award of attorney’s fees.
¶10. As with other domestic-relation matters, a chancery court’s award of alimony is discretionary and will not be reversed on appeal absent a determination that the court’s findings of fact were manifestly in error and an abuse of discretion. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). “A chancellor’s decision to award permanent alimony must consider both need and ability to pay.” Rogillio v. Rogillio, 57 So. 3d 1246, 1252 (¶24)
(Miss. 2011). “In making that decision, the chancellor considers, in relevant part, the reasonable net income and expenses of both spouses.” Id. (citing Box v. Box, 622 So. 2d 284, 288 (Miss. 1993)). “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019).
¶11. Arguing that the chancery court failed to “balance [Melanie’s] needs with [his] inability to pay” in awarding periodic alimony, Morgan contends that Melanie “received over $44,000.00 in assets, [had] no debts, had all of her expenses paid for several years under the temporary order, and currently is a homeowner with over $44,000.00 in separate equity in her home over and above the property division.” In contrast, Morgan states that he has a negative estate with approximately $50,000 in debt. He also claims Melanie now earns more than he does.
¶12. Morgan argues that the chancery court was required to examine the financial positions of the parties both at the time of trial and the time of remand, citing Yelverton v. Yelverton, 26 So. 3d 1053 (Miss. 2010). Specifically, Morgan claims that while the chancery court addressed his financial position at the time of remand, the court failed to consider Melanie’s current financial position. His main point of contention is that Melanie’s salary had
increased since 2015, and she now earns more in net monthly income than he does. In Yelverton, the chancery court issued a seventeen-page judgment without a hearing and upheld awards of alimony and child support. Id. at 1056 (¶6). The chancellor “based his decision on testimony and exhibits received at the hearings conducted prior to the original 2004 judgment.” Id. The appellant claimed the court should have held an evidentiary hearing to consider changes occurring since its original 2004 judgment. Id. at (¶10). The Mississippi Supreme Court agreed and reversed and remanded with instructions to the court to “conduct an evidentiary hearing” in order to determine the following: (1) the value of marital assets no later than the date of divorce and based on evidence presented at the remand hearing; (2) “the amount of periodic alimony and child support due up until the time of the
remand hearing” based on circumstances up until the remand hearing; and (3) “the amount of periodic alimony and child support going forward from the time of the remand hearing, which shall be determined based on the circumstances existing at the time of the remand hearing.” Id. at 1057 (¶13).
¶13. Unlike Yelverton, the chancery court in this case determined that the periodic alimony award of $500 was appropriate after conducting an evidentiary hearing and considering the parties’ incomes and expenses at trial and up to remand. The chancery court noted in its order that Melanie’s net monthly income, as of February 18, 2015, was $851.70, while her net expenses were $2,830.00, and that she “lost approximately $2,000 per month simply
paying her bills.” Morgan’s monthly net income, as of February 2015, was $2,579.35, while his net expenses were $2,329.39 before the child-support payment.
¶14. With regard to the parties’ finances up to remand, the chancery court’s order admittedly failed to mention Melanie’s more recent Rule 8.05 financial declaration dated June 2018, which showed her net monthly income had increased to $2,991.32.6 However, the chancery court found that both parties “essentially live paycheck to paycheck with their current living expenses.” (Emphasis added). This finding is supported by the evidence. Melanie’s combined total expenses from her 2018 Rule 8.05 financial declaration were $3,840.53, still leaving her with a significant deficit. Furthermore, although Melanie’s salary and wages significantly increased to $3,114 in 2018, she still earns less than Morgan. According to his financial declarations, Morgan’s salary and wages increased from $3,620 in 2015 to $4,752.80 in 2018.
¶15. Accordingly, we do not find that the court’s award of periodic alimony was manifestly in error or an abuse of discretion, and we affirm on this issue.
This case illustrates what a chancellor can do when both parties live “paycheck to paycheck,” and how the COA is likely to view it, even when the alimony will have to be conjured up from thin air, or seem to. It seems to me that the appellate courts could go either way in a close case such as this (as the chancellor could, as well), the tipping point being one party’s greater — even slightly greater — need. When you try one of these quite typical scenarios, think about that tipping point. Give your chancellor the evidence she needs to tip the case your client’s way.
Quantifying Child Support
April 27, 2020 § 2 Comments
It is well-established in our law that a court-imposed life insurance obligation must be in an amount reasonably relative to the obligation secured by it. For instance, a $1,000,000 policy to secure a $500 monthly alimony obligation would be unreasonable.
In his divorce from Allison Gaskin, Tony Gaskin was ordered to keep in effect an existing life policy “with death benefits of at least $900,000 … to guarantee the support of the minor boys.” Was that reasonable? Tony didn’t think so, because he calculated child support to total only around $357,000. So he appealed.
In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson’s opinion for the unanimous court:
¶15. In the final judgment, the chancellor ordered Tony to maintain his existing Farm Bureau Life Insurance policy “with death benefits of at least $900,000 during the boys’ minority.” The chancellor required continuation of the policy “to guarantee the support of the minor boys,” specifying that the “boys shall be listed as the primary beneficiaries until both boys’ emancipation or until further order of [the court].” Tony contends that the chancellor’s ruling was in error. Tony reasons that because the life insurance was to “guarantee the support of the minor boys,” the policy’s death benefits should mirror the total amount of Tony’s remaining child support obligations. In monetary terms, Tony calculates that he should only have to maintain a policy with death benefits of $357,115.40, an amount equal to the child support Tony contends he will pay until the boys’ emancipations. [Fn 8] Tony thus contends that the chancellor abused his discretion by requiring that Tony maintain an insurance policy with death benefits in excess of the amount needed to support the boys in the event of his untimely death.
[Fn 8] At the time of the parties’ divorce, the minor boys were thirteen and sixteen years old. To calculate policy death benefits at $357,115.40, Tony posits that support for the older boy would continue for forty months and support for the younger boy would continue for ninety months, until their respective emancipations. Tony multiplies the current child support for the two boys by forty, which totals $96,686.40. He then adds the amount of child support that he would have to pay for his younger son, presumably half of the current amount, for the remaining fifty months until he is emancipated, which equals $60,429. He then adds $100,000 for each child to cover college expenses. These amounts yield Tony’s asserted $357,115.40 in outstanding child-support obligations.
¶16. In support of his position, Tony relies on Daniels v. Bains, 967 So. 2d 77 (Miss. Ct. App. 2007). In Daniels, the appellant contended that the county court erred in ordering him to purchase a $500,000 life insurance policy for the benefit of his daughter. Id. at 83 (¶20). Daniels argued that the $500,000 policy was excessive because he would only be paying $273,600 in support until his daughter’s emancipation. Id. But we found “Daniels’s attempt to quantify a father’s support [ ] unpersuasive” and determined that the chancellor did not abuse his discretion in ordering Daniels to maintain a life insurance policy for his minor daughter. Id. at 83-84 (¶¶21-22).
¶17. As in Daniels, we find Tony’s attempt to quantify his child support obligations unpersuasive. “Parents may be ordered to pay additional amounts over and above child support for additional expenses such as ‘health insurance, out-of-pocket medical and other health-related expenses, life insurance, and expenses of a college education.’” Id. at 83 (¶21) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 10.07, at 309 (1st ed. 2005)). “[A] father’s support is not fully appreciable in a simple financial cost-benefit analysis”; to the contrary, “a father’s overall support transcends mere financial support.” Id. at 84 (¶22). We thus find that the chancellor did not abuse his discretion in ordering Tony to maintain a $900,000 life insurance policy prior to his boys’ emancipations.
In other words, a father’s support is more than a pay day, or is intended in our law to be. It is love, companionship, moral and character building, modelling fatherhood and family relationships, teaching skills, and even more. How do we place a value on that?
Alimony is a whole ‘nother ball of wax, as the court points out in footnote 9, page 9.
The Founders, Religion, and Conscience
April 24, 2020 § 3 Comments
Was it the intention of the founders to establish a Christian nation?
Witness their thoughts:
- “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” — James Madison
- “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. State churches that use government’s power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the ‘wall of separation between church and state,’ therefore, is absolutely essential in a free society.” — Thomas Jefferson
- “The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate … We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. The civil government functions with complete success by the total separation of the Church from the State.” — James Madison
- “We should begin by setting the conscience free. When all men of all religions shall enjoy equal liberty, property, and equal chance for honors and power we may expect that improvement will be made in the human character and the state of society.” — John Adams
- “I beg you be persuaded that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution.” — George Washington
- “I contemplate with solemn reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.” — Thomas Jefferson
- “It is contrary to the principles of reason and justice that any should be compelled to contribute to the maintenance of a church with which their consciences will not permit them to join …” — George Mason
- “Without freedom of thought, there can be no such thing as wisdom; and no such thing as a public liberty without the freedom of speech; which is the right of every man as by it he doe not hurt or control the right of another …” — Benjamin Franklin
- “Conscience is the most sacred of all property.” — James Madison
- “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience …” — George Mason
Law in the Time of Plague
April 22, 2020 § 3 Comments
Some ruminations on our current state of affairs:
- It was March 13, 2020, when the MSSC issued its first emergency administrative order to address covid-19 and the courts. From the vantage point of only a month and a week later, that seems like a century ago. What we hoped would be a week or two ordeal has persisted … and looks like it will continue to persist into the foreseeable future.
- Who could have imagined the scope of isolation? If I ever gave pandemic any thought at all it was on my scale of worrisome things right around quicksand, poisonous cobras, and werewolves. Now I think about it — a lot. Living with pandemic is like living in a city stalked by a random shooter. You never know whether this particular trip to the grocery store is the one that will do you, or whether standing in line at the post office is where it will get you, or whether this visit to the court house …
- The Governor is mulling over when to roll back the restrictions he imposed to limit spread of contagion. As for the courts, though, keep in mind that we are not subject to the Governor’s authority because we are a separate, equal branch of government. The MSSC has administrative authority over the courts. Of course the high court respects the Governor’s guidelines and tries to incorporate their boundaries into the court guidelines as much as possible, but in the final analysis the court goes its own way. My point being that, once the Governor drops his restrictions, do not expect the courts immediately to do the same. It might be that the courts may continue restrictions in place. Judges will continue to follow the MSSC’s Emergency Administrative Orders as long as they remain in effect, and as they are changed.
- One salutary, I suppose, development has been to influence mossbacks such as I closer to use of Zoom, Face Time, and who knows what else to do the court’s business. That may end up being a long-term and even permanent change that the pestilence brought to our daily practice.
Prescriptive Easement Fail
April 21, 2020 § Leave a comment
Steve Thornton filed suit as trustee of a family trust to establish a prescriptive easement to property owned by the trust. The original chancellor stepped aside after a bench trial, and the parties agreed that the successor chancellor could decide the case on the record made before the first chancellor. Following a review of the record, the successor chancellor ruled that Thornton had failed to meet his burden of proof and ruled for the defendants. Thornton appealed.
The COA affirmed in Thornton v. Purvis, et al., handed down April 14, 2020. Here’s how Judge Jack Wilson’s opinion for the unanimous court addressed it:
¶21. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). To establish a prescriptive easement, the claimant must show use of the easement that “was: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. at 1152-53 (quotation marks omitted).
¶22. A chancellor’s finding that the evidence was insufficient to establish a prescriptive easement is a finding of fact that we review under “the substantial evidence/manifest error test.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). Under that test, we will not reverse unless the chancellor’s findings of fact are manifestly wrong or clearly erroneous or the chancellor applied the wrong legal standard. Darnell v. Darnell, 234 So. 3d 421, 423 (¶4) (Miss. 2017). We will “accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 155 (¶24) (Miss. 2011).
¶23. Each of the elements of a prescriptive easement “must be proven by clear and convincing evidence.” Thornhill, 594 So. 2d at 1153. “‘Clear and convincing evidence’ is such a high evidentiary standard that it surpasses even the standard of‘overwhelming weight’ of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Put otherwise, the minimum evidentiary offering from the unburdened appellee necessary for affirmance is less than it would be if the preponderance of the evidence rule applied.” Id.; accord Matthews v. Whitney Bank, 282 So. 3d 786, 794-95 (¶29) (Miss. Ct. App. 2019).
¶24. Thornton argues that we should abandon our usual, deferential standard of review in this case. He contends that we should review Judge Martin’s findings de novo because Judge Martin did not preside over the trial or personally observe the witnesses. However, the cases that Thornton cites are inapposite. For example, in Amiker v. Drugs For Less Inc., 796 So. 2d 942 (Miss. 2000), the Supreme Court held that “a successor judge does not possess the power to vacate an initial judge’s order granting a new trial where . . . the successor judge sits in an inferior position to the first judge.” Id. at 948 (¶22) (emphasis added). Judge Martin did not vacate any prior findings by Judge Walker. Rather, Judge Martin simply made findings of fact based on the evidence presented at trial and his view of the property—just as the parties agreed that he should.
¶25. In addition, in Gulf Coast Research Laboratory v. Amaraneni, 877 So. 2d 1250 (Miss. 2004), the Supreme Court held that the record was “woefully inadequate” to support the findings of a successor judge because, among other issues, the court reporter had failed to transcribe most of the original trial. Id. at 1252-54 (¶¶10-15). Therefore, the Supreme Court vacated and remanded the case for a new trial. Id. at 1254 (¶15). The problem in Gulf Coast
Research Laboratory was the adequacy of the record, not the standard of review. In this case, Judge Martin was provided the full and complete trial transcript, and the parties agreed that the record was adequate for Judge Martin to render a final decision. Thornton simply disagrees with the decision that Judge Martin rendered.
¶26. Although Judge Martin did not personally observe the witnesses, “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. There is no reason to believe that appellate second-guessing of such findings would do anything to improve their accuracy. Id. at 574-75. “In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade [ten] more judges at the appellate level is requiring too much.” Id. at 575. The trial “should be the main event rather than a tryout on the road.” Id. (quotation marks and ellipsis omitted).
¶27. Thornton agreed that the record created at trial was adequate for Judge Martin to make findings and issue a final decision. That being the case, we apply our ordinary substantial evidence/manifest error test to those findings.
II. The chancellor did not manifestly err by denying Thornton’s claim.
¶28. The six elements of a prescriptive easement are set out above. Supra ¶21. To establish an easement by prescription, each of those six elements must be proved by clear and-convincing evidence. Therefore, the claim fails if the claimant fails to prove even one of the six elements. See, e.g., Miss. Sand Solutions LLC v. Otis, 248 So. 3d 813, 818-20 (¶¶19-29) (Miss. 2018); Paw Paw Island Land Co. v. Issaquena & Warren Counties Land Co., 51 So. 3d 916, 923-26 (¶¶27-41) (Miss. 2010); Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005); Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999); Watts v.
Jackson, 281 So. 3d 203, 206 (¶18) (Miss. Ct. App. 2019).
¶29. As noted above, the chancellor found that Thornton failed to prove four of the six elements of a prescriptive easement. As to the “open, notorious, and visible” element, the chancellor found in part:
The problem with proving this element is the intermittent use proven by the Plaintiff. . . . Most, if not all of the use which was specifically referenced by the Plaintiff or his family members related to hauling hay or harvesting corn. This use is limited to a few days each year. No evidence was shown of daily, weekly or even monthly use or ongoing maintenance by the Plaintiff that might have put property owners on notice that someone was using the roadway. Considering the rural nature of the surrounding area and the lack of residences along the roadway, the Court cannot say that use a few days a year constitutes clear and convincing evidence of open, notorious and visible use.
¶30. A party claiming an easement by prescription is not required to prove “that the way has been in constant use, day and night.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Rawls v. Blakeney, 831 So. 2d 1205, 1210 (¶16) (Miss. Ct. App. 2002)). However, the claimant is required to establish that the servient landowner knew of and acquiesced in the adverse use or that the adverse use was “so open, notorious, visible,
and uninterrupted that knowledge and acquiescence will be presumed.” Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992) (quoting McIntyre v. Harvey, 158 Miss. 16, 21, 128 So. 572, 573 (1930), overruled on other grounds by Rutland v. Stewart, 630 So. 2d 996, 999 (Miss. 1994)). We cannot say that the chancellor in the present case manifestly erred in finding that Thornton failed to establish this element of his claim by clear and convincing evidence.
¶31. To begin with, there is substantial evidence to support the chancellor’s finding that the Thorntons’ alleged use of the road was limited to a few days per year, which would not have provided sufficient notice to other landowners in this rural, sparsely populated area. Moreover, Timothy Patterson and Royce Welch described the path as just a “little pig trail” or “little trail” until the mid-1970s, when an oil company improved and widened it. Patterson
denied that the Thorntons used the path to plant or harvest crops or hay while he lived there, and Welch similarly denied that the Thorntons had ever grown hay, corn, or other row crops in the area. Accepting their testimony as true, nothing about the use or appearance of the road should have alerted neighboring landowners to any significant adverse use of their properties. The testimony of Patterson and Welch conflicted with testimony of Thornton and his other witnesses, who described driving down a gravel road via truck, tractor, and wagon even before the improvements in the 1970s. However, the mere presence of conflicting evidence does not render the chancellor’s findings manifestly erroneous. Rather, such conflicts must be decided by the trial judge, as the fact-finder. E.g., Powell v. Campbell, 912 So. 2d 978, 981 (¶9) (Miss. 2005). Therefore, we cannot say that the chancellor manifestly
erred by finding that Thornton failed to prove, by clear and convincing evidence, that his family’s use of the property was open, notorious, and visible.
CONCLUSION
¶32. All six elements of a prescriptive easement must be proved by clear and convincing evidence. If the claimant fails to meet his burden on any one element, the claim fails. We hold that the chancellor did not manifestly err by finding that Thornton failed to establish by clear and convincing evidence that his family’s use of Alvie Rankin Road was open, notorious, and visible. Therefore, we need not address the chancellor’s findings regarding
the remaining elements of Thornton’s claim. The judgment of the chancery court denying a prescriptive easement is AFFIRMED.
Lots of nice, helpful law there, and a fine exposition on the law of prescriptive easements and adverse possession.
The Better Chancery Practice Blog 