Life Estate with Right to Convey Fee Simple
September 12, 2017 § Leave a comment
May a person convey property by warranty deed to another, reserving both a life estate and the right to convey the property as if he were fee simple owner?
In 1973, Gilbert Lum executed a warranty deed conveying a 40-acre tract to his daughter, Lucille Crotwell. The deed included the following language:
“Grantor, however, does hereby expressly RESERVE unto himself a life estate in the foregoing lands coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner thereof … also RESERVING unto himself all mineral interest owned by him in said lands for his lifetime.”
In 1998, Lum conveyed one acre of the tract to Prestage by warranty deed, subject to his life estate for mineral interests. Prestage in turn conveyed the property to himself and his wife as tenants by the entirety. The couple executed a deed of trust which, after mesne assignments, was foreclosed on in August, 2011, and purchased by T&W Homes.
In December, 2011, the Crotwells filed a complaint to confirm title, remove cloud, and for ejectment. The special chancellor granted summary judgment that Lum had reserved a life estate only, and that his reservation of the right to reconvey fee simple title was “an illegal and void restraint upon alienation and repugnant to the granting clause of the deed. T&W filed an interlocutory appeal.
In T&W Homes v. Crotwell, decided August 24, 2017, the MSSC affirmed. Justice Randolph wrote for the 7-2 majority:
¶7. T&W argues that deeds containing reservations of life estates with power to reconvey fee simple title are recognized in other states. Each case cited by T&W is not only foreign to Mississippi law, but is factually distinguishable. … the deed at issue in the case sub judice effected a then-present conveyance by general warranty deed of real property owned by Lum. After acknowledging receipt of valuable consideration—thus taking this case outside the realm of inter vivos and testamentary gifts—Lum“[c]onvey[ed] and warrant[ed]” the forty acres described in the deed to Crotwell. The deed was signed, delivered, notarized, and filed—putting the world on notice of the transaction. Crotwell was the grantee identified in the deed. She was described in the deed as a contingent remainderman, as posited by the dissent. See Diss. Op. at ¶ 20.6 The words “remainder” or “remainderman” are not in the deed sub judice. Contra Jamieson, 912 S.W.2d at 604-05.
¶8. … [Footnotes omitted] The Lum-Crotwell deed reads that consideration was exchanged. On his oath, Lum acknowledged receipt of consideration in the notarized deed, rendering [a Maryland case] inapposite and unpersuasive.
¶9. Finally, T&W asks this Court to consider Kyle v. Wood, 86 So. 2d 881 (Miss. 1956). While Kyle remains good law for the principles of wills and testaments, it offers no guidance to today’s case. [Fn omitted]
¶10. In Kyle, J.A. Wood’s 1948 will contained the following provision:
I will and give all my property of every kind wherever located to my beloved wife, Mrs. Molly Wood, to have [and] to hold during her lifetime to use, sell and dispose of as she sees fit; and at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.
Id. at 882. J.A. Wood died in 1952. Id. Later that year, Molly conveyed the property to another. [Fn omitted] After her death, [Fn omitted] nephew Kyle filed suit against her grantees, complaining that the grant of power in J.A. Wood’s will to dispose was invalid. Id. at 882-83. This Court found Molly’s conveyance valid:
It thus appears that the rule is well settled by our own decisions, that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of the remainderman under the will by the exercise of the power of disposal during his lifetime.
Id. at 885.
¶11. Today’s case is governed by the law of deeds, not the law of wills and testaments. [Fn omitted] To write a learned treatise on each subject is not the endeavor of this opinion, which would be the result were we to discuss exhaustively the voluminous distinctions between these intricate and nuanced bodies of law. Suffice to say, we offer only a smattering of distinguishing features. A grantor of a deed must deliver it before it becomes effective. [Fn omitted] On the other hand, to convey real property by will, the testator devises [Fn omitted] the real property upon death. And while wills are revocable by the testator at any time before death, a warranty deed for consideration (no matter how slight) is irrevocable between the parties once executed—and once filed, is valid against the world. The rule of Kyle affects testators of wills, not grantors in deeds.
¶12. The provisions in Wood’s will and Lum’s deed also differ. Wood left his wife a life estate in his property with the power to dispose. Lum, however, did not deed his daughter a life estate with the power to dispose, but rather conveyed the property by a general warranty deed to his daughter in fee and reserved unto himself a life estate. The provisions of Wood’s will were testamentary gifts. His nephew Kyle was a mere remainderman. The Lum-Crotwell deed was not a gift; it was a completed transfer or conveyance of real property with no reference to a contingent remainder. Crotwell was Lum’s grantee. T&W’s attempt to use testamentary law to settle a deed dispute is no less repugnant than the contested language in the deed before us.
¶13. Unlike the cases cited by T&W, the deed from Lum to Crotwell was not a future gift. It was not an enhanced life estate with potential remaindermen. The deed effected a present conveyance, consideration of which was acknowledged in the deed. Lum “convey[ed] and
warrant[ed]” the property to Crotwell. And as the chancellor noted, “warrant” conveys a statutorily defined meaning. See Miss. Code Ann. § 89-1-33 (Rev. 2011) (“The word “warrant” without restrictive words in a conveyance shall have the effect of embracing all of the five (5) covenants known to common law, to wit: seizin, power to sell, freedom from incumbrance, quiet enjoyment and warranty of title.”). The warranty deed contained no restriction on the warranty. Thus any attempt to reserve the power to reconvey, or convey again, fee simple title is repugnant to the grant of the warranty, which included all of the aforementioned covenants, as found by the learned chancellor.
¶14. A deed case directly on point which validates the chancellor’s decision is Dukes v. Crumpton, 103 So. 2d 385, 386 (Miss. 1958). The deed from Dukes to Crumpton contained the following provision: “Grantor or his successor reserve all rights of sale and management.” This Court held that such a provision “is an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.” Id. at 388. T&W attempts to distinguish Dukes, arguing that while the reservation in Dukes was perpetual, the one from Lum to Crotwell terminated with the life estate. However, the shortened life of the reservation does not render an otherwise repugnant clause valid. The fact remains that a present conveyance, for which sufficient consideration was duly acknowledged, was executed, subject only to a life estate. That conveyance carried with it the five covenants that attached to the warranty of the deed. Because the warranty was without restriction, any reservation of the right of the grantor to sell fee simple title to property already conveyed was repugnant to the covenant of the power to sell included in the grant and warranty to Crotwell. Pursuant to the deed, Crotwell acquired ownership of the property upon delivery of the deed—March 13, 1973. Lum could not subsequently convey to Prestage property he no longer owned.
¶15. The dissent is correct that, when interpreting deeds, we look to the language employed in the deed to determine and effectuate the intent of the parties. [Fn omitted] Before making an omniscient declaration of the parties’ intent, the dissent contorts and amends the “plain language of the deed” by asserting (1) that “Lum’s deed conveyed to Lucille no present interest in the property,” (2) that it instead “provided her a contingent remainder,” and (3) that it “clearly stated that title to the property in fee simple would vest in Lucille only upon Lum’s death provided he had not otherwise conveyed the property during his lifetime.” Diss. Op. at ¶ 20. Yet none of these conclusions is supported by the words of the deed. The
language ofthe deed effectuates a present conveyance: “I, Gilbert Lum, [address] convey and warrant to Lucille Lum Crotwell [address]” the described forty acres (emphasis added). The deed recites and acknowledges receipt of consideration, and Lum swore it was delivered. Nowhere in the deed does it describe Crotwell’s interest as a contingent remainder. Nor did Lum transfer, grant, or convey a life estate. He conveyed the described property to Crotwell while reserving unto himself a life estate. There were no words of inheritance in the deed, either in the warranty portion or following the reservation to himself. Upon his death, his life interest dissolved. Had Lum conveyed to himself a life estate with the right to dispose of the property, remainder to Crotwell (as the dissent would characterize the deed before us), the dissent’s interpretation of his intent would hold water. [Fn omitted] But such is not the case. [Emphasis in original]
¶16. We agree with the chancellor that Lum retained an ownership interest in the property—his life estate—which he retained the right to sell during his lifetime. But rather than “fail[ing] to recognize a contingent remainder,” [Fn omitted] we restrict our analysis to the words
of the deed and decline to create a contingent remainder when one is not contained therein.
Pardon the truncated version of the opinion. I was trying to capture the gist of it for you. You can read the original for your own edification if you need it to argue. The footnotes omitted above by themselves would make a fine opinion in their own right.
One trivial quibble: deeds are usually acknowledged, not sworn to. There is a difference between the two actions, as I have explained previously. At a couple of points in the opinion, mention is made that Lum swore to delivery and other averments of the deed. The actual language of the deed is not included with the opinion, so we readers do not know whether the deed was sworn or acknowledged. My guess, though, is that it was merely acknowledged because that is how deeds are executed, per MCA 89-3-1, et seq.
Divorce is a Rule 4 Action
September 11, 2017 § 2 Comments
Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:
¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.
A couple of commentors hit the nail on the head.
The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.
It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.
The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.
I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.
The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.
RIP CIRCUIT JUDGE JUSTIN COBB
September 9, 2017 § 3 Comments
Judge Cobb died today while jogging on his 43rd birthday, according to Lauderdale County Coroner Clayton Cobler.
A promising, dedicated life cut too short.
God bless Holli, children, Leonard and Betsy.
Rule 4 or Rule 81?
September 6, 2017 § 9 Comments
Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.
Can anyone tell me what is wrong with this statement from the opinion:
¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.
I’ll revisit this next week.
Divorce Venue Can Be Waived
September 5, 2017 § 2 Comments
If there is one maxim of conventional wisdom in Mississippi divorce law, it is “Venue in a divorce is jurisdictional.” As a result, an objection to venue can not be waived.
That’s because the divorce venue statute, MCA 93-5-11, has been construed to confer subject matter jurisdiction which, as everyone knows, can neither be waived nor voluntarily conferred. The concept is embedded in our case law.
The foregoing was the law until June 1, 2017. Now the law has changed.
In Lewis v. Pagel, decided by the MSSC on June 1, 2017, Drake Lewis tried to argue on appeal that the chancery court lacked subject-matter jurisdiction over his divorce from Tonia Lewis Pagel because he was not a resident of the county where the divorce was filed. The Supreme Court rejected that argument, and turned its attention to the question whether Drake had waived what up until then had been unwaivable. Justice Chamberlin wrote for a unanimous court:
¶28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So. 2d 447, 451 (Miss. 1985).
¶29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of Civil Procedure provides:
(d) Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.
M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section 93-5-11 directly after its 2005 amendment.
¶30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So. 2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So. 2d 124,125 (1947) (applying Section 2738); Carter v. Carter, 278 So. 2d 394, 396 (Miss. 1973) (applying Section [93-5-11’s 1942 Code predecessor]) [Fn omitted] ; Miller v. Miller, 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So. 2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So. 2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).
¶31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. [Fn 3] Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. [My emphasis]
[Fn 3] In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.
¶32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.
¶33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.
¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.
¶35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the
dispute. [Fn omitted] Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.
So there you have it. Venue in a divorce case is no longer a function of subject matter jurisdiction that can not be waived or voluntarily conferred; it is a function of personal jurisdiction that can be waived. If venue is improper, the issue must be timely raised, and the remedy is transfer, not dismissal.
Remember that “timely” language from R 82. It does no good to plant a venue objection in your answer, and then to joust through discovery and motions for a year or two only to try to get the case transferred after the tide has been running against your client.
One little fillip, though. Won’t this open up the possibility of forum shopping? The plaintiff and defendant may decide to file in a district where neither resides because it has a shorter wait time to final hearing, or has a judge who is more to their liking, or for any other reason. A judge may invoke R 82 on her own motion at any time, but something has to bring the issue to the judge’s attention for that to happen. Or maybe we are simply entering an era when the locus of the divorce no longer has that much significance. Stay tuned.
“Quote Unquote”
September 1, 2017 § 3 Comments
“Wherever we went, the soldiers came to kill us, and it was all our own country. It was ours already when the Wasichus [whites] made the treaty with Red Cloud that said it would be ours as long as grass should grow and water flow. That was only eight winters before, and they were chasing us now because we remembered and they forgot. We were not happy anymore, because so many of our people had untied their horses’ tails [left the warpath] and gone over to the Wasichus. We went back deep into our country. The bison had gone away, and a hard winter came early.” — Wooden Leg of the Cheyenne
“It is cold, and we have no blankets; the little children are freezing to death. My people, some of them, have run away to the hills and have no blankets, no food. No one knows where they are — perhaps freezing to death. I want to have time to look for my children and see how many of them I can find. Maybe I shall find them among the dead. Hear me, my chiefs! I am tired; my heart is sick and sad. From where the sun now stands, I will fight no more forever.” — Chief Joseph of the Nez Perce
“Accommodation had failed, War had failed. And the bullet-riven Ghost Shirts buried with their wearers in the mass grave on the lone knoll above Wounded Knee Creek were ample proof that religion too had failed the Indians. There was no room left for the Indians in the west but what the government saw fit to permit them. One elderly Lakota chief who had witnessed the march of events from the Treaty of Fort Laramie in 1851 to the tragedy at Wounded Knee four decades later saw nothing remarkable in what had transpired. “The [government] made us many promises,” he told a white friend, “more than I can remember, but they never kept but one; they promised to take our land, and they took it.” — Peter Cozzens, The Earth is Weeping
Photo courtesy of Ben McMurtray
Another Life Insurance Award Reversed
August 30, 2017 § Leave a comment
The fairly commonplace practice of securing alimony awards via life insurance has come under increasing scrutiny. A recent post on the subject is at this link.
You can add the COA’s decision in Griner v. Griner, handed down June 27, 2017, to your collection of cases on point. In that case, the chancellor had ordered Chip Griner to obtain a $1,000,000 life insurance policy based on an award of alimony to his wife, Melanie. On appeal, Chip argued that the parties’ consent to divorce authorized the judge to consider alimony, but not life insurance. Justice Irving wrote for the court:
¶28. We also find that the chancellor operated within the authority granted to him by the parties’ submission of the issue of alimony when he ordered Chip to maintain a life-insurance policy with Melanie designated as the beneficiary. Mississippi Code Annotated section 93-5-23 (Rev. 2013) provides that, when granting a divorce, a chancellor
may, in [his] discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.
Miss. Code Ann. § 93-5-23. This Court has held that “[a]n alimony payor may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” Coggins v. Coggins, 132 So. 3d 636, 644 (¶35) (Miss. Ct. App. 2014) (citations and internal quotations omitted). “Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency.” Id. at 645 (¶37); see also Johnson v. Pogue, 716 So. 2d 1123, 1134 (¶41) (Miss. Ct. App. 1998); Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005).
¶29. While we find that the chancellor was within the authority granted him by the parties when he ordered Chip to maintain a life-insurance policy with Melanie named as the beneficiary, we also find that the amount that Chip was required to maintain—$1,000,000— was unreasonable and excessive. The purpose of requiring an alimony payor to maintain a life-insurance policy with the alimony payee designated as the beneficiary is to protect the vested but unpaid amount of alimony in case of the payor’s death.
¶30. In Coggins, we held that the chancellor erred in his requirement that the husband designate his former wife as the beneficiary to a $175,000 life-insurance policy “to protect against [the husband] defaulting on his $504-per-month alimony payments and then dying before curing the default.” Coggins, 132 So. 3d at 645 (¶38). We reasoned that “[t]his amount of insurance—the equivalent of thirty years worth of alimony payments—assumes not only that [the husband] may fall behind for three decades but also that [his former wife] will experience no material change of circumstances altering or terminating her need for alimony.” Id.
¶31. Here, with respect to the protection of the alimony awarded to Melanie, the chancellor stated in the modified order:
The [c]ourt failed [in its final judgment] to ensure that the amount of alimony awarded to Melanie [was] covered by insurance and hereby directs Chip to change the beneficiary on his $1,000,000.00 life insurance policy to make the same payable to Melanie for the performance of the [j]udgment of the [c]ourt in case of Chip’s death.
As noted earlier in this opinion, the chancellor awarded Melanie periodic alimony of $3,000 a month, as well as lump-sum alimony of $480,000, or $4,000 a month for ten years. Although Chip was allowed to pay the lump-sum alimony in installment payments, the full amount vested immediately. Only a $480,000 policy would be required to guarantee payment of the lump-sum alimony. If Chip immediately paid his lump-sum-alimony obligation in a single payment, he would have to fail making his monthly periodic-alimony payments for more than twenty-seven years to accumulate a $1,000,000 arrearage. And if Chip chose to pay his lump-sum-alimony obligation in installment payments, along with his
periodic-alimony payments, and failed to make any payments for ten years, he would be in arrears by only $840,000, not counting any accrued interest. It is unreasonable to assume that Melanie would allow the payments to get that far behind before seeking judicial redress. Moreover, it is not unreasonable that Melanie may remarry, at which time Chip’s periodic alimony obligation would cease. Since we are already reversing on other grounds, we direct that on remand the chancellor take a new look at the amount of life insurance that will be required to protect Melanie’s alimony interest.
Again, the amount of life insurance ordered needs to be enough to protect any arrearage that might reasonably be expected to accrue, and no more.
Some Notes on Dennis
August 29, 2017 § 1 Comment
Yesterday we visited the case of Dennis v. Dennis, in which the MSSC upheld the self-imposed obligation of a step-great-grandfather to pay child support for a 12-year-old child who refused to have a relationship with him.
A few observations:
- Even if Dennis made a severe error in judgment by agreeing to pay child support on the mistaken belief that he was required to do so, that will not get him termination of his child support obligation. The court can modify only upon a showing of a material change in circumstances.
- Parties are free to agree to all sorts of things in a PSA that a court could not impose on them in a contested framework. For instance, the husband could agree to provide college support until the child attains age 25; no judge could order that outside the parties’ agreement. A party could agree to provide health insurance for step-children to a certain age; again, something no chancellor could unilaterally order. Here, Dennis agreed to support JRH, legal obligation or none. That agreement is enforceable under this case and long-standing authority.
- The dissent argues that the chancellor may only approve agreements for support of the children of the parties, per MCA 93-5-23 (and 93-5-2). The majority looked to the Mississippi Constitution as the source of the chancellor’s authority. Taking either route, however, I think the fact that Dennis voluntarily took on custody of JRH vested him with responsibilities under the law that could have and should have been addressed in the divorce. Dennis should not be allowed to extinguish his obligations to the child via divorce.
- To tag onto the above, although the statutes refer to the children of the marriage, there is nothing in the statutes that prohibits the parties from agreeing to support other children, or even other adults. The cases that have analyzed the parties’ negotiations and agreement-making in the context of irreconcilable-differences divorces (including this one) all resonate with the theme that the parties should be free to make any agreement that makes adequate and sufficient provision for settlement of property and support of children. I argue that the wider the latitude given the parties to negotiate the lesser the likelihood that the familiar and all-too-common “divorce blackmail” phenomenon can be brought to bear.
- The fact that the natural parents continue to have a support obligation to JRH, and continue to visit, also avail Dennis nothing. He agreed to the arrangement, self-imposing a support duty parallel to the parents’.
- And Dennis’s agreement to much more, probably, than what the judge would have imposed on him in the custody matter were it contested makes him a poster child for litigants like him who eschew legal advice for expediency. Sans fraud that can’t be undone.
- As for the hostility of JRH, this case is right in line with the many cases that have dealt with the phenomenon. The facts must be extreme and the parent seeking to invoke it must not be at fault. To those parameters you can add, thanks to Dennis, that the age and maturity of the child must be taken into account.
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