Family Law Ne Plus Ultra
July 13, 2017 § Leave a comment
Reminder that the Bell Family Law Seminars are coming up. They have been known to sell out, so you need to go ahead and register.
Dates are: July 21, Jackson; July 28, Oxford; and August 4, Biloxi.
Here is the link to more info and a registration form.
“Quote Unquote”
July 7, 2017 § Leave a comment
“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” — Benjamin N. Cardozo, Palko v. Connecticut, 302 U.S. 319, 327, (1937)
“I call that mind free, which jealously guards its intellectual rights and powers, which calls no man master, which does not content itself with a passive or hereditary faith, which opens itself to light whencesoever it may come, which receives new truth as an angel from heaven. I call that mind free, which sets no bounds to its love, which is not imprisoned in itself or in a sect, which recognises in all human beings the image of God and the rights of his children, which delights in virtue and sympathizes with suffering wherever they are seen, which conquers pride, anger, and sloth, and offers itself up a willing victim to the cause of mankind.” — William Ellery Channing
“Perhaps the fact that we have seen millions voting themselves into complete dependence on a tyrant has made our generation understand that to choose one’s government is not necessarily to secure freedom.” — Friedrich Hayek
The New HCIT
July 6, 2017 § Leave a comment
In case you hadn’t noticed, habitual cruel and inhuman treatment, the seventh ground for divorce in Mississippi, has undergone a change, effective July 1, 2017.
Here is how the language of § 93-5-1, MCA, now reads:
Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse.
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
How will this play out? We’ll have to see how the appellate courts interpret it, of course. But several thoughts come to mind:
- By removing the corroboration requirement and replacing it with the testimony of a single “reliable” witness, the statute essentially leaves it up to the chancellor to make a credibility determination as to that individual. Since determining the credibility of and the weight to be given a witness’s testimony is exclusively the province of the chancellor, it should be practically impossible to get the chancellor’s decision reversed on appeal.
- Some judges, I am sure, will be quite ready to give credibility to any person claiming to be the injured party. In those courts, the parties will be back to where we were up to the early 1980’s when chancellors had the latitude to conclude even where the proof was weak that the parties clearly needed a divorce, so it was granted.
- The statute went into effect July 1, 2017. I don’t know whether the new language can be amended into already-filed pleadings, or whether it applies only to complaints filed after July 1, or whether it applies only to conduct arising on or after July 1.
- I personally like the addition of “forced isolation” and emotional and sexual abuse rising above unkindness, rudeness, or incompatibility. That specific language opens up some areas that perhaps have been murky in our case law. Still, I wonder whether the courts will require proof of adverse effect on the injured party. Stay tuned.
Beyond the Scope of the Pleadings
July 5, 2017 § Leave a comment
It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.
In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:
¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.
No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.
I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.
Things We Think We Heard in Court
June 30, 2017 § 1 Comment
I try to jot down droll things that people say in the course of their testimony.
Here are two from just last week:
“It was her lies. That was the icing that broke the camel’s back.”
and
“I spend every penny on my children. It takes the cake to support them.”
My all-time favorite, reported here previously:
“Of course, you realize that the flip side of that coin is a two-edged sword.”
And a note that a defendant enclosed with his temporary alimony:
“I heard that your lawyer had a heart attack. I hope the little grease spot dies.”
That note was admitted into evidence along with several alimony checks with the entry “Fat cow extortion” on the memo line.
In a case I tried, a witness testified that the force of impact in a car crash was so great that her neighbor was “almost decapacitated.”
A woman testifying in a custody case repeatedly referred to her daughter as being “bi-polo.”
Pardon me for this one, but a woman earlier this week told the chancery clerks that she needed some papers “masturbated.” A clerk asked her if she meant notarized or certified. “No,” she said, “masturbated.”
And, finally, this actual exchange in my court:
Atty 1: Objection, irrelevant.
Court: How is that relevant?
Atty 2: I don’t know. I was just throwing up a Hail Mary hoping to hit something.
Court: Well, the pass is incomplete; call another play.
The Testamentary Contract
June 28, 2017 § Leave a comment
When is a contract really a will?
That was the question before the COA in the case of Estate of Greer: Oakes v. Ball, about which I posted a little over a year ago at the link. In that case, Greer had included this provision in a lease with the Nunnerys:
In the event of the death of the Lessor, this lease agreement shall not terminate, rather the rights and limitations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.
When the case went to trial, the chancellor concluded that the provision was merely a transfer of the Lessor’s interest, and was not testamentary.
On appeal, the COA reversed, holding that the provision was, indeed, testamentary in nature and, therefore, was unenforceable because it did not meet the requirements of a testamentary instrument such as subscription and being witnessed by two witnesses. The COA’s decision is at this link.
The MSSC granted cert., and on June 1, 2017, affirmed the COA. You can read the court’s opinion at this link; it includes so many footnotes that I simply do not have time to reformat to accommodate all of them.
The important point from this case is that, if the grantee’s right will vest only upon the death of the grantee, then the instrument is is testamentary and must meet the formal requirements of a will in order to enforceable according to its terms.
The court rejected the argument that Ball could validly enforce the contract as a third-party beneficiary.
Justices Kitchens, King, and Chamberlin would have distinguished the case from prior case law on the basis that this one involved a lease contract as opposed to a deed. They make several other compelling arguments that you might find helpful when dealing with similar issues.
Abandonment of the Marriage Redux
June 27, 2017 § 1 Comment
When a widow renounces a will that does not make provision for her or makes inadequate provision, the will proponent may assert abandonment or desertion of the marriage as a defense to the renunciation.
That is what happened in the case of Estes and Estes, Co-Executors of the Estate of Estes v. Estes. I previously posted about the case, in which the COA reversed the ruling of the chancellor that Sarah Estes had not abandoned or deserted her dying husband so as to bar her from renunciation. You can read my take on the case at this link. I made this statement in that post:
What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative.
Sarah filed a petition for cert, which the MSSC granted. In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down June 1, 2017, the MSSC reversed the COA, affirmed the chancellor, and remanded the case for further proceedings consistent with the court’s ruling. Chief Justice Waller wrote for a unanimous court, Maxwell not participating:
¶10. The standard of review on “findings of fact by a trial judge without a jury [is] manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence.” Hale v. State Democratic Exec. Comm., 168 So. 3d 946, 951 (Miss. 2015) (quoting Young v. Stevens, 968 So. 2d 1260, 1263 (Miss. 2007)). This standard of review precludes the “scouring [of] every record before the Court for any and all information which might contradict a . . . court’s factual finding” since this would “amount to an inspection for errors that are far less conspicuous than those that are ‘unmistakable, clear, plain, or indisputable.’”Id. (quoting Black’s Law Dictionary 963
(6th ed. 1990)).
¶11. The Court of Appeals in Estes I directed the chancellor, on remand, to consider the “clear-abandonment standard” of Tillman v. Williams, 403 So. 2d 880 (Miss. 1981). Following the trial, the chancellor addressed the issue of clear desertion, finding that Estes had failed to meet the burden of proof. The following was included in the chancellor’s factual findings and judgment:
Critical to a determination of Sarah’s clear desertion and abandonment of the marriage and resultant estoppel from claiming a statutory right to an inheritance are the facts following Joe’s October hospitalization. According to Sarah, after Joe was discharged from the hospital, he began to act irrationally. He accused her of infidelity and the theft of groceries. On November 26, 2006, Sarah called Joe’s physician, Dr. Pinson, to seek advice on how to help Joe. Sarah then filed a complaint with the Lee County Sheriff’s Department that Joe was threatening her and acting irrationally. A deputy sheriff came to Joe’s residence and made a report. Joe’s irrational behavior is born [sic] out by his refusal to dress appropriately and by him discharging a gun from inside his house through an open window. The severity of Joe’s mental difficulties is perhaps best documented, however, by his tragic May 18, 2007 suicide.
Regardless of the date of separation, the chronology of events following the parties’ separation is not disputed. On January 30, 2007, Sarah files a commitment proceeding against Joe. She attaches a copy of the previously mentioned Sheriff’s report. The two examining physicians fail to find Joe a danger to himself or other[s], i.e., not in need of involuntary commitment. On February 2, 2007, Joe seeks a restraining order against Sarah. Sarah counters on March 7, 2007, by filing for divorce. Joe answers and files a Counter-Complaint on March 27, 2007. On March 26, 2007, the parties agree to a mutual restraining order. On March 29, 2007, a temporary order is entered directing Joe to allow Sarah to retrieve her personal property. Guided by the applicable law and applying that law to the facts and having observed the witnesses, the Court is of the opinion that those urging an estoppel have failed to prove that estoppel.
While the facts exist which show a non-traditional marriage, Joe knew when the parties married that Sarah had, on a daily basis, the responsibilities of attending to her grandchildren. Moreover, Joe’s behavior was at times bizarre and the Court cannot say that Sarah willfully left and had the intention of permanently separating from the marital relationship. Mere absence from home, without more, does not show willfulness.
The court would note that Sarah’s consultation with Dr. Pinson on November 26, 2006, creates an inference that Sarah was trying to get Joe help. Moreover, seeking to have Joe committed, on January 30, 2007, rather than filing for divorce is suggestive to the Court that Sarah was trying to get Joe help and that the marriage was not over. Efforts by a spouse to get a spouse professional help should not be used against that spouse. Finally, the Court notes that Joe filed a Petition to restrain Sarah on February 2, 2007, which may well have caused Sarah to seek a divorce almost a month later. (Citations omitted).
¶12. The Court of Appeals listed the following facts it found in “conflict” with the chancellor’s findings:
(1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings.
Estes v. Estes (Estes II), 2016 WL 1564404, *4 (Miss. Ct. App. Apr. 19, 2016). The Court of Appeals then stated the “most glaring evidence of Young’s abandonment of the marriage was her petition for divorce,” citing Tillman as primary legal support. Id.
¶13. However, the Tillman case actually used the language “secure a divorce.” Tillman, 403 So. 2d at 881. In Tillman, this Court reversed the trial court’s judgment, finding that “[a] thorough review of the record reveals that not only was an abandonment uncertain, but there just was not any substantial evidence to show a desertion or abandonment.” Tillman, 403 So. 2d at 882. In fact, Tillman holds that the requirement for clear proof of abandonment must be strictly construed:
Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel. In Walker, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relationship. Id. (citing Walker v. Matthews, 191 Miss. 489, 3 So. 2d 820 (1941)).
¶14. In Rowell v. Rowell, the Court also focused on the legal status change and determined that the trial court had erred when it had found that the widow’s adulterous relationship was grounds to show abandonment or desertion. Rowell v. Rowell, 251 Miss. 472, 170 So. 2d 267, 271-72 (1964). Relying on an Alabama case, the Court stated, “[a]s long as the marriage relation continued in law, the rights of the wife continued under the [descent and distribution] statute.” Id. at 270 (citing Nolan v. Doss, 133 Ala. 259, 261-62, 31 So. 969, 969-70 (1902)). The Rowell Court found that an adulterous relationship was not sufficient evidence of abandonment or desertion and that no evidence was presented that showed a bigamous marriage, which may have been grounds for abandonment. Id. at 271. The Court again focused on the legal change that occurs when someone remarries. Williams v. Johnson, 148 Miss. 634, 114 So. 733 (1927) (finding that the adulterous conduct was not at issue but only
whether a bigamous marriage resulted).
¶15. Following the renunciation of a will that fails to include the spouse, the will proponent may raise abandonment and desertion as estoppel to the renunciation. Rowell, 251 Miss. at 477-78, 170 So. 2d at 268. Mississippi Code Section 91-5-25 allows the surviving spouse automatically to renounce the will, thus the burden to show evidence of clear abandonment or desertion is on the aggrieved party. Miss. Code Ann. § 91-5-25 (Rev. 2013).
¶16. As this case is close factually and there was no legal change of marital status, we cannot say the chancellor was manifestly wrong in granting Sarah Young a child’s share of Joe Estes’s estate.
This decision illustrates the principle that, if the chancellor’s decision correctly applies the law, and her findings of fact are supported by substantial evidence in the record, the decision should be, and most often is, affirmed on appeal, no matter how close the question or how eyebrow-raising the outcome.
There is much useful law here on the law of renunciation and its defense. This is actually an issue that arises from time to time in chancery, and you would do well to be ready for it.
