“Quote Unquote”
August 4, 2017 § 1 Comment
“No man can purchase his virtue too dear, for it is the only thing whose value must ever increase with the price it has cost us.” — Charles Caleb Colton
“We are what we think. All that we are arises with our thoughts. With our thoughts we make the world.” — Gautama Buddha
“The great ideals of the past failed not by being outlived (which must mean over-lived), but by not being lived enough. Mankind has not passed through the Middle Ages. Rather mankind has retreated from the Middle Ages in reaction and rout. The Christian ideal has not been tried and found wanting. It has been found difficult; and left untried.” — G. K. Chesterton
The Price of Love and Affection
August 1, 2017 § Leave a comment
Every attorney and judge with experience in chancery court can recite experience with cases that illustrate the devastating effect that family disintegration, divorce, and family conflict can inflict on a child.
A recent case, Collins v. MDHS, decided June 13, 2017, is a case in point. The facts of the case, which you can read for yourself, catalog family violence, alienation, separation, and a child fractured almost beyond repair. The result was that Lisa Collins and her son, Adam (both fictitious names to protect their identities), were estranged. Lisa blamed the estrangement on Adam and his mental-health issues.
When he was 16 years old, Adam moved in with a paternal uncle, Victor, and his wife. Victor entered Adam into a program for emotionally disturbed children in Arlington, Tennessee. Victor received Title IV services for support of Adam, because Lisa was contributing no support. Lisa objected, contending that Adam should be declared emancipated due to his hostility toward her, and due to some of his behavior. After hearing the matter, the chancellor overruled Lisa’s objection and ordered that she pay 14% of her AGI as child support. The chancellor addressed Lisa’s arguments:
While Adam’s behavior is inappropriate to the point of being disgusting, that behavior, in the court’s opinion, stems from emotional and psychological problems. Stated differently, Adam is mentally ill, an illness he is attempting to address in an institutional environment. Additionally, the court would note that Lisa testified that she did not want a relationship with Adam. Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time. Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances the Court is disinclined to relieve Lisa of her obligation to support Adam.
Lisa appealed.
Judge Carlton wrote for the court. The excerpt is lengthy, but it bears posting:
¶15. Lisa argues that the chancellor applied an erroneous legal standard in determining that Lisa and Adam were equally responsible for the breakdown of the parent-child relationship. As a result of these errors, Lisa submits that the chancellor’s judgment ordering Lisa to pay child support should be reversed.
¶16. Specifically, Lisa asserts that the chancellor failed to consider the proximate cause of the breakdown of the parent-child relationship, citing to Lowrey v. Simmons, 186 So. 3d 907, 914 (¶¶17, 20) (Miss. Ct. App. 2015), in support of her claim. Lisa submits that the chancellor heard deposition testimony from Adam regarding the extreme behavior he exhibited despite years of counseling. Lisa also submits that she provided testimony detailing Adam’s physical and verbal outbursts directed toward her. Lisa claims that Adam’s pornography use fits the criteria for legal cause, and she argues that it is reasonably expected or foreseeable that Adam’s access to pornography would lead to a sexual deviance that
resulted in the breakdown of almost all of his relationships.
¶17. MDHS, however, argues that Lowrey v. Simmons failed to create a duty upon the trial court to always perform a proximate-cause determination in deciding whether to terminate an obligation of support upon the deterioration of the parent-child relationship. MDHS submits that the record also indicates that Lisa has not provided financial support for Adam for several years, despite admitting at trial that she was unaware of some of Adam’s more perverse behavior toward animals until it was revealed through Adam’s deposition testimony. MDHS therefore asserts that Lisa cannot use Adam’s perverse behavior as an excuse for her refusing to provide support to him.
¶18. Lisa also argues that the chancellor’s findings of fact are not substantially supported by the entire court record, and are manifestly wrong and clearly erroneous. Lisa claims that although the chancellor stated that he would read Adam’s deposition prior to entering his judgment on the matter, the chancellor did not appear to be aware of Adam’s extensive mental-health history.
¶19. Regarding an award of child support, “this Court respects a chancellor’s findings of fact if they are supported by credible evidence and not manifestly wrong.” Lowrey v. Lowrey, 25 So. 3d 274, 293 (¶46) (Miss. 2009) (citing R.K. v. J.K., 946 So. 2d 764, 772 (¶17) (Miss. 2007)). Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) sets forth the child-support guidelines and provides that the “guidelines shall be a rebuttable presumption . . . regarding the awarding or modifying of child support awards[.]” On appeal, we “will not affirm a child-support award that deviates from the statutory guidelines unless the chancellor overcomes the rebuttable presumption by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Lowrey v. Lowrey, 25 So. 3d at 293 (¶46) (citing Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005)) (internal quotation marks omitted).
¶20. In addressing Lisa’s argument that we should reverse the chancellor’s award of child support since Adam’s behavior caused the breakdown of the parent-child relationship, we recognize that “a child generally will not forfeit support from a noncustodial parent unless his or her actions toward the parent are clear and extreme.” Lowrey v. Simmons, 186 So. 3d at 914 (¶23) (citing Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991)) (internal quotation marks omitted). In Caldwell, 579 So. 2d at 548, the noncustodial parent argued that his teenage child had “totally abandoned the [parent-child] relationship, and so dislikes [the noncustodial parent], that [the noncustodial parent] should no longer have to pay any support[.]” The supreme court rejected this argument and, citing Holston v. Holston, 473 A.2d 459 (Md. Ct. Spec. App. 1984) (superceded by statute in part), explained:
The amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent. The proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that conclusion, the chancellor must balance the needs of the child against the parent’s financial ability to meet those needs.
Caldwell, 579 So. 2d at 548. The supreme court clarified that “[i]t is not suggested that there could never be a situation where a minor child as young as fifteen might by his actions forfeit his support from a non-custodial parent[, but] [t]hose actions would have to be clear and extreme[.]” Id. The Caldwell court determined that the facts before it failed to constitute clear and extreme actions on behalf of the child which would warrant forfeiting child support, recognizing that the child “sought professional counseling and advice to deal with his feelings toward [the noncustodial parent] and openly talks of trying to improve the relationship.” Id.
¶21. However, in Hambrick, 382 So. 2d at 478, the supreme court reversed the chancellor’s judgment requiring the noncustodial parent to pay for his college-age child’s college expenses or further child support. The supreme court based its decision on its findings that the child, by her own testimony, has not had any contact with [the noncustodial parent] for six or seven years and does not want to have any contact with him. She says that she dislikes him, categorizing it close to “hate[.]” . . . From the time that she was twelve years of age, [the child] has shown no love, affection, appreciation or consideration for [the noncustodial parent]. Id. at 477. The supreme court determined that “there is nothing in this record that would justify [the child’s] attitude toward [the noncustodial parent,]” and thus held that based on “the unfortunate circumstances of this case, we are of the opinion that the [noncustodial parent] should be relieved of any further obligations to support or educate [the child].” Id.
¶22. In Lowrey v. Lowery, 25 So. 3d at 294 (¶48), the chancellor deviated from the statutory guidelines by ordering the noncustodial parent to pay less support than the required statutory amount. The chancellor based this deviation on the fact that two of the children were estranged from the noncustodial parent. Id. Upon review, the supreme court found that all three of the children were estranged from the noncustodial parent, “having made it clear that they cast their lot with their father, the primary caregiver.” Id. The supreme court reversed and remanded the chancellor’s child-support award, explaining that “[e]strangement is not a basis for deviation from statutory child-support guidelines and is not an excuse for failing to pay child support.” Id.
¶23. In the more recent case of Lowrey v. Simmons, 186 So. 3d at 914 (¶20), the chancellor suspended and terminated the noncustodial parent’s support obligations, including the obligation to pay college expenses, after determining that: (1) the noncustodial parent “was the proximate and primary cause of the erosion of his relationship with his daughter,” and (2) the daughter “ha[d] exacerbated this erosion by her own deep-seated antipathy toward [the noncustodial parent].” The chancellor thus explained that he based his decision to terminate the support obligations on a “‘substantial and material change in circumstance’—the erosion of the parent-child relationship and failure to reconcile[.]” Id. at 916 (¶25). In reviewing the chancellor’s decision, this Court acknowledged the standard set forth in Hambrick, but clarified that “[a]lthough the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship[.]” Id. This Court thus held that “[w]here a [noncustodial parent’s] own neglect is the proximate cause of the erosion of his relationship with [the] child, the child’s resistance to belated efforts to reconcile will not relieve the [noncustodial parent] of obligations of support[,]” and accordingly reversed the chancellor’s decision to terminate the noncustodial parent’s child support obligation. Id. at 917 (¶26).
¶24. In the case before us, the chancellor distinguished the facts of Hambrick, explaining that in Hambrick, the child was college-aged, had her own income, and would not be destitute without the noncustodial parent’s support. At the time of the chancellor’s judgment, Adam was eighteen years old, but still a resident at a school for emotionally disturbed children.
¶25. In the instant case, the chancellor also made the following findings of fact after listening to testimony from Lisa, Victor, and [Victor’s wife,]Debbie, and after reviewing Adam’s deposition testimony:
Lisa testified that she had no relationship with Adam because of his attitude and his numerous emotional problems. She feels he is a danger to himself and to her and her husband. She testified that she is not willing to have a relationship with him and feels he does not want one with her. The Court would note, however, that Debbie . . . testified that Adam wanted a relationship with his mother but did not know how to develop one and had cried for hours about this. The Court is reluctant to catalogue in a written opinion all of Adam’s inappropriate behaviors. Some, like calling her a whore, abusing animals, or fighting with her husband, were known to Lisa. Others were learned from
Adam’s deposition which was taken in connection with this litigation. These include making allegations against Arnold and [Lisa], attempted sexual intercourse with a dog, and watching pornography, including bestiality. Suffice it to say that Adam is deeply troubled emotionally.
. . . .
Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time.
¶26. The chancellor observed that Adam exhibited inappropriate behavior “to the point of being disgusting,” but he opined that Adam’s behavior stemmed “from emotional and psychological problems” and that “Adam is mentally ill.” The chancellor also acknowledged that Lisa testified that she did not want a relationship with Adam.
¶27. The chancellor ultimately found that “Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances, the court is disinclined to relieve Lisa of her obligation to support Adam.” The chancellor explained that although “[t]he court cannot force parents to be parents, . . . it can refuse to excuse parents from their financial responsibility to support, even when emotional support is lacking.” The chancellor recognized that “[a]ssuming responsibility may be difficult, especially when a child is like Adam,” but stated that he could not “condone transferring responsibility to the [S]tate simply because [Adam] has become a burden.”
¶28. Based on our review of the applicable precedent and the facts herein, we find the chancellor’s determination that both Lisa and Adam contributed to the erosion of the parent child relationship is supported by substantial credible evidence in the record. Lowrey v. Lowrey, 25 So. 3d at 293 (¶46). Similarly, we find that the chancellor’s findings of fact are also supported by substantial credible evidence in the record. Id. Despite Lisa’s assertion, the chancellor’s judgment reflects that he possessed an awareness of Adam’s extensive mental-health issues and history. As a result, we find no error in the chancellor’s judgment ordering Lisa to pay child support. We further find that the chancellor’s award of child support was within the statutory guidelines set forth by section 43-19-101(1).
Not much to add other than to say that it takes “clear and extreme” circumstances to find that a child has abandoned the parent-child relationship, and the amount of child support does not depend on the amount of love and affection between parent and child.
I May Not Always be Right, but I’m Never Wrong
July 31, 2017 § 3 Comments
That title up there is a quote from Samuel Goldwyn, he of Hollywood studio fame.
A lawyer recently introduced himself to me and, after telling me that he read this blog every day, said to the effect that he thought I was not always right, but he enjoyed reading it.
Well, I totally agree with him. You see, what you have here is my unvarnished opinion on whatever I choose to write about. My opinions may not always be right, but they might send you off on your own quest for something more solid.
As for what I do in court, the appellate courts may not agree with my opinion (if they care), other chancellors may not agree, and even lawyers may not agree. But in my court I’m never wrong until the COA or MSSC says I’m wrong, or until I change my mind. And I think my opinions, as do yours, and those of other lawyers and judges, have some value in themselves.
Seriously, you should regard this blog as a starting point. As one reader said, he searches here first on chancery issues and then uses what he finds to search on Westlaw. That’s in keeping with what I have said here many times: this is a starting point. Where you go from here with further research and analysis may take you in a different direction.
I am never offended when someone challenges my conclusions and judgments. That is what the law is all about. That is how the law grows and develops. That is what lawyers and judges do. Out of the controversy we hope that truth will emerge, and I think in most cases that is what happens.
Failure to Join Necessary Parties
July 26, 2017 § Leave a comment
Dorothy True died in 2014, at age 100. Her husband had predeceased her. She was survived by her four children: Ann Schmidt; Mary Hegwood; John True, who died after Dorothy’s death; and Jim True.
Jim filed to admit Dorothy’s eight-page holographic will to probate. Ann and Mary petitioned the chancery court to contest the will based on some formal irregularities. Following a hearing, the chancellor ruled that the will was a valid holographic will. It appears that Ann and Mary had proceeded against the executor and anyone else who had entered an appearance. But the estate of John, and some other devisees, as well as some heirs of the decedent, were not made parties. Ann and Mary appealed.
The COA reversed in the case of In the Matter of the Last Will and Testament of True: Schmidt and Hegwood v. True, handed down May 23, 2017, Judge Wilson writing for the court:
¶7. On appeal, Ann and Mary argue that the chancery court lacked jurisdiction because necessary parties were not joined. Unfortunately, we must agree. Section 91-7-25 of the Mississippi Code Annotated provides that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional:
We have consistently held that the statutory mandate is jurisdictional and the court has no power to proceed with the contest until all interested parties are joined. [Robert A.] Weems, Wills and Administration of Estates in Mississippi, § 8–4, p. 180 (1988) states:
[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if any of the interested parties are not before the court. If the court does proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.
Interested parties are those whose direct, pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group would ordinarily be a decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested. (emphasis added)
. . . .
One of the primary purposes of the statute is the fervent desire to avoid multiple litigation, and the court’s interest in consistent, efficient and final settlement of controversies. In Moore v. Jackson, 247 Miss. 854, 860, 157 So. 2d 785, 787 (1963), we stated:
The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.
. . . .
[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.
To grant validity and credence to [a] court’s action in proceeding with [a will] contest without joinder of all interested parties would undermine the legislative mandate of [section] 91-7-25. In Estate of Schneider, 585 So. 2d 1275, 1277 (Miss. 1991), we had the occasion to reflect on Moore and stated:
In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties.
. . . .
Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will. Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 787-88; 157 So. 2d at 861-63.
¶8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent.
¶9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. [Fn omitted] We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” [Fn omitted] Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception to this requirement must come from the Supreme Court or the Legislature.
¶10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So. 2d at 938.
So, who were the unjoined interested parties who were necessary to jurisdiction in this case? Note at ¶8 that the COA finds both the unjoined devisees and the unjoined heirs as necessary for jurisdiction. That’s because if the will is set aside, the heirs would stand to inherit.
This one is on the lawyers. It’s not the judge’s job to investigate and inquire about who should be made parties in a case such as this.
Revocation by Implication
July 25, 2017 § Leave a comment
May a will be revoked by a subsequent property settlement agreement in a divorce? That was an issue in the case of In the Matter of the Estate of Chaney: Chaney, et al. v. Chaney, decided May 16, 2017.
In June, 1962, James Chaney executed his last will and testament during a time when he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney. James and Lillian were divorced on May, 1969. In connection with the divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.”
In 1971, James married Josephine Chaney, and they moved to Mississippi where they lived until James’s death in 2011. They had no children.
In 2011, Lillian filed a petition to admit James’s 1962 will to probate in Mississippi, joined in by Alice. Josephine contested the validity of the will and moved to transfer the Crockett County farmland out of the estate. The chancellor found that the will was revoked by implication, and Lillian appealed.
The COA affirmed. Judge Griffis wrote for a unanimous court:
¶14. Lillian and Alice … argue that the chancellor erred when he found that James’s will was revoked by implication. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.
¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” Miss. Code Ann. § 91-5-3 (Rev. 2013). In Rasco [v. Estate of Rasco, 501 So.2d 421 (Miss. 1987)], the supreme court recognized that a will may be revoked by various circumstances, not specified within the statute. Rasco, 501 So. 2d at 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a pre divorce will and a subsequent property-settlement agreement are in conflict. Hinders[v. Hinders,] 828 So. 2d at 1235 (¶1) [Miss. 2002]. Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So. 2d at 423.
¶16. When presented with this issue, a chancellor should “question . . . whether the testator intended . . . [the] settlement [to] operate as . . . an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further,“[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[G]enerally a divorce accompanied by a property settlement agreement[,] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).
¶17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So. 2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.
¶18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predivorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.
¶19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.
¶20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property settlement agreement speaks for itself, and James’s intentions are clear.
¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the parties severed ties many years before this action.
¶22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So. 2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So. 2d at 1240 (¶15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.
¶23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.
Do not assume, and never let your clients assume, that a divorce, whether agreed or contested, will operate to revoke a will. As Hinders and Rasco both clearly state, there must be a specific, clear intent on the part of the testator to revoke. Here, the intent was clear, and Lillian’s agreement to forfeit her interest sealed the deal. Suppose, though, that the PSA had only included some of that standard language to the effect that what’s titled in her name is hers, and what’s titled in his name is his. Would that have been enough to revoke the will? I think not.
A previous post talking about advising your clients in the aftermath of divorce is here.
An End to Game-Playing
July 24, 2017 § 2 Comments
In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.
The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”
In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.
In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:
¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).
¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).
¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.
¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.
The court went on to address and reject some other issues raised by the Griffins.
Some takeaways:
- Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
- Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
- Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.
Reprise: Getting Police Reports in Evidence
July 21, 2017 § Leave a comment
Reprise replays posts from the past that you may find useful today.
POLICE REPORTS AS EVIDENCE
February 11, 2013 § Leave a comment
Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.
A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.
The COA rejected Sheri’s argument. Judge Lee, for the court:
¶16. “Even though police reports, if offered in evidence to prove the truth of the matter asserted[,] are hearsay and the information within them may be based on hearsay, they may be admissible under the hearsay exception in [Mississippi] Rule [of Evidence] 803(8).” Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 491 (¶36) (Miss. 2010). Rule 803(8), entitled “Public Records and Reports,” states:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).
¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.
¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.
In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.
One is left to wonder whether Sheri’s objections would have been upheld if Walter had been the sponsor of the report, and if Sheri had truthfully denied the facts in the report. What do you think? Don’t overlook this statement by Judge Lee: “The report clearly contains information gathered from both Walter and Sheri.”
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