A Plea for Written Stipulations
July 6, 2016 § Leave a comment
Nearly 43 years removed from law school, there is not a whole lot from that experience that remains firmly implanted in my brain (I finally got over the PTSD a couple of years ago). Most of what I know of the law I have learned in the practice.
One glaring exception is the sage admonishment of N.S. “Soggy” Sweat, our Trial Practice professor, to “Always, always reduce a stipulation to writing.”
Am I the only one who remembers that? It would appear so, because I seldom see written stipulations. I could almost say I never see them, but I am sure it has happened once or twice in my span in the law.
So why go to the trouble? Here are only a few scenarios of many, many failures:
- After Lawyer A has laboriously announced the stipulation, Lawyer B says something like, “We did not agree to that specific visitation, judge, and we did not agree to the tax exemption.” Back to the drawing board.
- Or Lawyer B wants to renegotiate parts of the attempted stipulation right there on the record.
- Or the announcement is made without objection, but when it comes time to draft the judgment based on it, there is a complete failure of meeting of the minds on what was actually intended by the imprecise language used in the announcement.
- Or the announcement is made, and the parties agree to its imprecise terms. Less than a year later they are right back in court fighting over their difference in opinion about what was intended.
When you write down the agreement, the terms are there for all to see. The document can be admitted into evidence, and it can be enforced according to its terms. There is usually greater precision in a writing because people tend to take greater care in what they reduce to writing. When we hear words spoken, we tend to add our own interpretation to them as they are said; we fill in the gaps and assume meaning that may not be included in the words used.
It takes more time and trouble, but I urge you to reduce your stipulations to writing. It can avoid a nasty experience for you and your client, and it will make it far more likely, if not assure, that you get precisely that to which you agreed.
Cohabitation and Termination of Alimony
July 5, 2016 § 2 Comments
If you have been looking for a history of Mississippi law on termination of alimony due to cohabitation, you need look no further than the MSSC’s decision in Heiter v. Heiter, by Sheffield, handed down June 9, 2016.
Patrick and Lindalyn Heiter were divorced in 2001. At the time of the divorce, Lindalyn had been diagnosed with several cognitive conditions that impaired her ability to perform simple tasks such as counting money or writing checks. Her ability to hold a job was impacted by her inability to coordinate or manage time properly. She could complete small tasks, but lacked organizational skills. Dr. Koch, a professional who examined her, opined that she would need to reside in an assisted-living situation; she had attempted living on her own after the separation, but those attempts ended poorly. Patrick agreed to pay Lindalyn $650 a month in periodic alimony.
Soon after the divorce, the court appointed co-guardians, one for her person, and the other for her estate. Sheffield, an attorney whose name appears in the style of the case, was appointed guardian of her estate, and Stepro was appointed guardian of the person.
In 2007, Patrick filed a petition for modification to terminate alimony, alleging that Lindlyn was cohabiting with a male, Curtis Cole. Patrick also claimed that she was receiving SSI, but that proved to be untrue.
Following a trial, the chancellor found that Lindalyn’s only income was the $650 alimony, and that she was drawing down some retirement funds she received in the divorce to make up the nearly $300 deficit between those sums and her expenses. The chancellor also found:
. . . [I]t is clear that Lindalyn is also unable to maintain employment. . . .
There is ample evidence that both Curtis and Lindalyn are supporting each other financially, and that Lindalyn would not be able to survive if she did not share finances with him. . . . Lindalyn only pays half of the rent and utilities on the house, while Curtis picks up the remaining expenses. . . . Curtis is currently on disability and does not work. . . .
The chancellor denied Patrick’s request to terminate alimony, and he appealed.
Justice Randolph addressed Patrick’s for a unanimous court:
¶5. Patrick sought to be relieved from paying alimony to Lindalyn. Patrick alleged that Lindalyn was cohabiting with a male and was receiving SSI benefits. Patrick further averred that there had been “a substantial and material change in circumstances since the original decree was entered,” and that the original decree should be modified to terminate or reduce his alimony obligation. Traditionally, alimony payments cease only if the receiving party remarries or either party dies. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). However, a chancellor has authority to modify alimony “upon a finding of a substantial change in circumstances, regardless of any intent expressed by the parties to the contrary.” Id.
¶6. In 1961, this Court was first faced with whether “a chancery court [could] divest a wife of future alimony payments on the ground of misconduct of the wife after the divorce.” Rubisoff v. Rubisoff, 242 Miss. 225, 233, 133 So. 2d 534, 536 (1961). Citing Bunkley and Morse’s Amis on Divorce and Separation in Mississippi [Fn 4] and 17 American Jurisprudence, Divorce and Separation, the Rubisoff Court concluded that a chancery court could exercise its powers by modifying or revoking its prior alimony award. Rubisoff, 242 Miss. at 236, 133 So. 2d at 538. The Court further determined that “it was the duty of the trier of facts to determine whether or not the alleged misconduct . . . was of such nature as to forfeit [the] right to future alimony.” Rubisoff, 242 Miss. at 236, 133 So. 2d at 538.
[Fn 4] 4 J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi, § 6.12 (1957); 17 Am. Jur. Divorce and Separation, § 755.
¶7. Twenty years later, the issue arose again in McRae v. McRae, 381 So. 2d 1052 (Miss. 1980). The Court held that “[n]o hard and fast rule or mold may be laid down to fit at once all of the spectrum of misconduct. The question must be faced and determined on a case-by-case basis.” McRae, 381 So. 2d at 1055.
¶8. Relying on Rubisoff and McRae, the Court later affirmed the judgment of a chancellor who found that a recipient spouse “had forfeited her right to future support from appellee because her admitted adultery during the period following her divorce was of sufficient duration and frequency to justify the holding of the chancellor.” McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980). The Court stated that “[t]o hold otherwise would be to condone adultery and in effect would penalize a divorcee for marrying but reward her for cohabitation without benefit of marriage.” Id.
¶9. Our law further evolved in Hammonds v. Hammonds, 641 So. 2d 1211 (Miss. 1994), in which the Court held that Rubisoff and its progeny “clearly reflect a moral judgment that a divorced woman should not engage in sexual relations; the penalty for such activity is forfeiture of her right to support from her ex-husband.” Hammonds, 641 So. 2d at 1216. The Hammonds Court departed from the prior line of cases and remanded the case for the chancellor to consider the “financial, rather than moral aspect[] of cohabitation” and further held there is a “presumption that the divorced woman’s partner/cohabitant is providing financial support, thereby eliminating or reducing her need for support from her ex-husband” unless the unique facts of the case direct otherwise. Id. at 1216-17. The Hammonds Court adopted a two-prong test which requires chancellors to consider whether a third party provides support to the recipient spouse and whether the recipient spouse contributes to the support of the third party. Id.
¶10. In Ellis v. Ellis, 651 So. 2d 1068 (Miss. 1995), the Court again remanded a case for a chancellor to determine (1) if there was cohabitation, (2) if the ex-wife was being supported by or was supporting her suitor, and (3) if her financial needs had changed due to the cohabitation and/or support. Ellis, 651 So. 2d at 1074. The Ellis Court cited a Florida [Fn 5]case which stated that cohabitation will raise a presumption of a material change in circumstances, but cohabitation alone does not require an automatic reduction or termination of alimony. Id. at 1072.
[Fn 5] DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. App. 1 Dist.1987).
¶11. In Scharwath, this Court officially adopted the Florida rule and held “that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (Miss. 1997). This presumption shifts the burden to the recipient spouse to produce evidence contradicting mutual financial support. Id. However, the paying spouse still must show that the cohabitation results in “a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs” before alimony can be modified. Id.
¶12. At the conclusion of the presentation of evidence by Patrick, the chancellor denied Lindalyn’s motion to dismiss, satisfied that Patrick had offered sufficient evidence of cohabitation and mutual support, which required Lindalyn to offer evidence related to mutual financial support. Lindalyn admitted that she lived with Curtis, but without sexual relations, and that they mutually supported one another. However, she denied that her financial needs had been altered due to the cohabitation and mutual support. After the parties concluded presentation of their proof, the chancellor announced she would take the case under advisement and would issue a written opinion.
¶13. The chancellor reviewed the evidence, considered the law, and issued an extensive, nine-page Findings of Fact and Conclusions of Law. The chancellor found that Patrick had failed to prove that Lindalyn’s financial needs were altered by her cohabitation with Curtis or the mutual support provided by Curtis. The chancellor found that there was no doubt that Lindalyn was receiving mutual financial support from Curtis. However, the chancellor noted that this was a “factually unique scenario . . . in which [Lindalyn] has no choice but to cohabit[] with another individual in order to survive.” The testimony presented by Brenda Stepro and Haidee Sheffield, Dr. Koch’s psychological report, and evidence of Lindalyn’s prior living arrangements all support the chancellor’s finding that Lindalyn must live with another person.
¶14. The chancellor held that “[w]ithout the $650.00 she receives from Patrick, Lindalyn would not be able to meet her financial obligations each month without accruing . . . penalties from withdrawals on the retirement account.” Reviewing the evidence submitted to the chancellor, there is sufficient proof that the support provided by Curtis to Lindalyn was not enough to justify eliminating or reducing Lindalyn’s support from Patrick. We find that the chancellor did not abuse her discretion in denying Patrick’s motion to terminate or modify alimony.
That’s about as concise a statement as you will find on the evolution of Mississippi law in this area.
Oh, and the court also affirmed the chancellor’s award of an attorney’s fee to Lindlyn based on testimony of her inability to pay. That’s some authority you might want to file away for future use, because getting an award of attorney’s fees in a modification such as this is not something you see every day.
“Quote Unquote”
July 1, 2016 § Leave a comment
“I wanted you to see what real courage is … It’s when you know you’re licked before you begin, but you begin anyway and see it through no matter what.” — Harper Lee in To Kill a Mockingbird
“I think a hero is an ordinary individual who finds the strength to persevere and endure in spite of overwhelming obstacles.” — Christopher Reeve
“We should never despair, our Situation before has been unpromising and has changed for the better, so I trust, it will again. If new difficulties arise, we must only put forth New Exertions and proportion our Efforts to the exigency of the times.” — George Washington
Family Law CLE Reminder
June 30, 2016 § Leave a comment
If you’ve been around here a while, you know that I am a believer in Dean Bell’s annual Family Law CLE seminars.
Time is running out to register for this year’s edition. You can register at this link. Seminars are scheduled for Oxford on July 8, Gulf Coast on July 22, and Jackson on August 5.
As I have said before, I am not in the business of promoting any particular event or publication, but Deborah Bell’s seminars are the best annual update of Mississippi family law that I have found. I have attended 18 of the past 19 years, and the materials and presentation are always an invaluable resource for lawyers — and judges — in this field. This year’s will be her twentieth.
While you’re at it, you should get a copy of her Bell on Mississippi Family Law, which is about the best desk reference you will find on the subject.
Some Thoughts About Partition Procedures
June 28, 2016 § 2 Comments
Following up with some thoughts on Moss v. Mathis, about which I posted yesterday:
- I was glad to see the COA accept the role of the statutory commissioner to serve as a special master pursuant to MRCP 53. The reason is that the rule sets out a specific procedure that is easy to understand and follow, in contrast to the statute, which does not prescribe any precise procedures. R53(a) specifically states that the term “Master” includes, ” … a referee, an auditor, an examiner, a commissioner, and a special commissioner.”
- If you are involved in any case where the court has appointed a master under R 53, the first thing you should do is drop everything and read the rule. I try to incorporate language in my order that spells out the procedure, but I am not required to do that, and your chancellor may not include a roadmap for you.
- Under R53, the master is required to arrange a meeting with the parties and to proceed to making a report as expeditiously as possible. Once the report is filed with the clerk, the court “shall accept the master’s findings of fact unless manifestly wrong.” The parties have ten days to file written objections. Action on the report or objections is initiated by motion and R5(b) notice. The court may adopt the report, or modify it, or may reject it in whole or in part or may take further evidence, or recommit it to the master with further instructions.
- As Moss v. Mathis illustrates, unless you file something in the form of an objection to the master’s report, you will likely be stuck with it, even if it is directly contrary to what your client wants out of the case. Don’t assume because the report is contrary to your client’s position that the court will assume you are objecting. The rule is clear that a written objection is required. Also if you merely file an objection and do not notice it for hearing, you are deemed to have waived the hearing and even your objection. See, Gettis v. Frison, 99 So.3d 1186 (Miss. App. 2012).
- So what kind of objection is required? Is it okay to file something like, “Come now the plaintiffs and object to the report of the special master”? Before you do that, notice the language in Moss v. Mathis at ¶13 about the Mosses’ failure to file any objection to either of the special master’s reports: “While the Mosses maintain that they object to the report, their specific objections remain unknown.” In Miles v. Miles, 949 So.2d 774 (Miss. App. 2006), the court stated that the requirements of R6 (notice and time for notice), and R7 must be met. R7 states that “An application for an order shall be by motion which … shall be made in writing, shall state the particular grounds therefor, and shall set forth the relief or order sought. That seems to me to say that specific grounds for objection need to pled in your motion objecting — at least specific enough to enable the court, special master, and opposing parties know what it is you are complaining about.
- As litigation grows more complex, you can expect to encounter R53 with increasing frequency in chancery.
The Special Commissioner in Partition
June 27, 2016 § 2 Comments
I don’t usually comment on cases in my court or originating here, but a recent decision of the COA merits your attention, so I am making an exception.
In this case, Mathis filed suit seeking partition of 60 acres of real property. Mathis claimed an undivided one-fifth interest, and averred that the property was not divisible in kind. The defendants, Moss family members, answered that the property was divisible in kind.
Pursuant to MCA 11-21-15, a commissioner was appointed to serve as a special master per MRCP 53(a). The special master filed his report in September, 2013, and requested a conference with the court, but no conference was held. Neither party filed any objection to the special master’s report.
There was a hiatus of nearly a year during which there was no activity in the case. In August, 2014, Mathis filed a motion to divide the property in kind. A hearing on the motion, with which the special commissioner agreed, was scheduled and rescheduled. On September 25, 2014, the parties signed an agreed order setting the hearing for November 12, 2014.
The special master filed an amended report in October, 2014, agreeing for the most part with the Mathis proposal, and setting his report for hearing on November 12, 2014. No objection to this amended report was filed by either party.
On November 12, 2014, the agreed date for hearing, counsel for the Moss family did not attend. No member of the Moss family was present. The special master and counsel for Mathis were present, and the judge entered a judgment accepting and adopting the special master’s report. Where there was a signature line on the judgment for the Moss’s attorney, the judge wrote, “DID NOT APPEAR.”
The Mosses appealed, and on May 24, 2016, in the case of Moss v. Mathis, the COA affirmed. Here is what Judge Barnes wrote for the court:
¶8. The Mosses raise only one issue: whether the chancellor committed manifest error in accepting the special master’s amended report without a hearing. The Mosses claim they had objections to the report, which were never allowed to be heard; therefore, their due process rights were violated. However, this argument is without merit. The Mosses never filed an objection to either of the special master’s reports; therefore, they were not entitled to a hearing. Regardless, several hearings on both reports were noticed to the parties, and at the final hearing, the Mosses’ counsel did not appear. Finally, the amended report was consistent with the requests the parties made in their pleadings.
¶9. Property-partition cases are generally governed by Mississippi Code Annotated sections 11-21-1 through -45 (Rev. 2004). Partition in kind is the preferred method of partitioning property in Mississippi. Fuller [v. Chimento], 824 So. 2d at 601 (¶8) (citations omitted). The propriety of partitioning property by sale or in kind is determined on a case-by-case basis. Id. at (¶9).
¶10. Regarding hearings on partition cases, a chancellor is not required to conduct a hearing on objections to the special commissioners’ [Fn1] report when the landowners do not submit their objections in the form of a motion and do not notice or request a hearing. Miles v. Miles, 949 So. 2d 774, 779 (¶18) (Miss. Ct. App. 2006). Alternatively, Mississippi Rule of Civil Procedure 53(g)(2) suggests that a chancellor must conduct a hearing when a party does submit objections in the form of a motion and complies with the rules of notice for hearings. Id. For the procedure on the report’s acceptance and objections, Rule 53(g)(2) states:
The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.
The Miles court clarified that it does “not suggest a party to a partition action has no right to a hearing,” but rather, “a party has a right to a hearing on their objections to a special commissioners’ report where the party that seeks the hearing follows the requirements set forth in Rules 53(g)(2)” and other related procedural rules. Miles, 949 So. 2d at 780 (¶21).
[Fn1] In Miles, “special commissioners” were appointed, which is the term the Mississippi partition statutes use, but here, the pleadings and the chancellor refer to a “special master.” Mississippi Rule of Civil Procedure 53(a) states the word “master” of the court includes “special commissioner.”
¶11. The Mosses’ argument follows the plaintiff/appellants’ argument in Miles very closely, even though this Court rejected that argument and affirmed the chancellor’s partition order, finding no violation of the appellants’ due-process rights because of the chancellor’s failure to conduct a hearing. See id. Additionally, Miles is distinguishable from this case because in Miles the chancellor did not have a hearing at all, as the plaintiffs “did not follow the necessary procedural requirements to even place the chancellor on notice that they desired a hearing.” Id. Here, several hearings were noticed, and one was held, but the Mosses never objected to the report.
¶12. The Mosses concede that Mississippi partition statutes – specifically section 11-21-25 – do not require a chancellor to conduct a hearing on the merits.[Fn 2] See Miles, 949 So. 2d at 779 (¶17). Like the appellants in Miles, the Mosses cite to Rule 53(g)(2) as authority for their argument, and that they needed a hearing in order to object to the report. However, that is not the proper procedure. As Miles explains, the chancellor is to conduct a hearing once a party submits his objections in the form of a motion, or notices a hearing. See Miles, 949 So.2d at 779 (¶18). Here, the Mosses did not submit objections at all.
[Fn 2] Section 11-21-25, on the report by the special commissioners, reads in pertinent part:
The special commissioners shall make to the court . . . a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court . . . or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.
¶13. While the Mosses maintain that they object to the report, their specific objections remain unknown. The amended report was consistent with the parties’ requests in their final pleadings. Initially, the Mathises sued for partition by sale, and the Mosses filed a counter complaint for partition in kind, although they did not state how they wanted the property partitioned. Over one year later, the Mathises changed their request from a partition by sale to a partition in kind. They filed a motion asking that the property be divided so that they would receive twelve of the sixty acres on the east side of the tract adjoining other property they own. The special master’s amended report stated that counsel for the Mosses agreed that the Mathises owned an undivided one-fifth interest in the property and agreed that the Mathises were entitled to have their interest partitioned in kind, but not by sale. Accordingly, the Mathises were conveyed the twelve-acre parcel they requested.
¶14. Further, from the record, the Mosses had opportunities to be heard or object to both the initial and amended reports, as several hearings were noticed, [Fn 3] but they did not do so until this appeal. Even now, they do not state their specific objection. On November 12, 2014, the special master and counsel for the Mathises were present, but counsel for the Mosses was not. On the final judgment, a handwritten notation made by the court on the signature line for the Mosses’ counsel indicated counsel “DID NOT APPEAR.” The Mosses’ counsel had an opportunity to appear and object but did not. Accordingly, we cannot find any violation of the Mosses’ due-process rights, or manifest error in the chancellor’s decision.
[Fn 3] Hearings were noticed by either the special master or counsel for the Mathises on September 26, 2013, August 14, 2014, September 25, 2014, and November 12, 2014.
I have a few thoughts about this case, but this post has gone on long enough. I’ll share my comments tomorrow.
Periodic or Lump-sum?
June 22, 2016 § Leave a comment
When Denise and Andrew Von Herrmann were divorced in 2012, their agreement incorporated into the divorce judgment included the following language:
“Wife shall pay husband periodic alimony as follows: On or before the 15th day of each month beginning August 15, 2012, $1,450 per month through March 16, 2016. Beginning April 15, 2016, and continuing through September 15, 2022, wife’s periodic alimony to husband shall be reduced to $500 per month, with the final periodic payment of $500 due on September 15, 2022. All alimony payments shall otherwise cease 1) upon the demise of the wife or husband or 2) upon husband’s remarriage or commencement of regular cohabitation with another woman.”
Denise filed a petition to modify in 2013, claiming a reduction in income from $180,000 to $85,000 a year. Denise had remarried or had her name restored to Runge at the time she filed.
Following a trial, the chancellor ruled that the payments were unmodifiable lump-sum alimony “due to the fixed amount and the definitive ending date. Denise appealed.
In the case of Runge v. Herrmann, decided May 31, 2016, the COA reversed. Judge Irving, for the court, analyzed the case law that goes in both directions on how to construe “hybrid alimony” provisions such as this. Instead of relying on those decisions, though, the court applied contract construction principles and concluded that it was the intent of the parties was that the payments were to supplement Andrew’s income and, therefore, they were in the nature of alimony, and not property division; thus, it was error for the chancellor to conclude that they were lump-sum alimony, which is a property-division tool. The case was remanded for further proceedings consistent with the opinion.
Some observations:
- Ever since the MSSC began permitting so-called “hybrid alimony” that mixed and matched various features of the three major genres of alimony (i.e., periodic, periodic rehabilitative, and lump-sum), the cases are quite fact-specific. It is hard to draw any hard and fast conclusions about what language to use to protect your client’s interests.
- As both sides argued here, the label you smack on the alimony arrangement you draft will not necessarily be controlling. Rather, the court must look to the substance of the parties’ agreement.
- In this case, it might have helped if it had been specifically stated in the agreement that the parties agreed that the arrangement was to supplement income, and was specifically not intended to be any form of property division or lump-sum alimony.
- Mention of the tax treatment in the agreement would probably have been dispositive. True alimony is taxable income to the recipient and deductible by the payer, unless some other agreed tax treatment is expressly stated. Lump-sum alimony, which is property division and not really alimony, is neither taxable nor deductible.
- As I have said here before, I really wish the MSSC would do away with the term “lump-sum alimony” as it applies to property division. Its original meaning, ‘way back in 1856 when it was concocted by the court, was to allow payment of the entire amount of alimony that would be payable under the decree to be paid in one, or several payments. (That was back before there was an IRS that frowned on front-loading). Over time, the court expanded the meaning to include payments to equalize the parties’ estates in divorce. That fiction was necessary at the time to get around the principle that title controlled, and the court could not divide separately-titled property, but it could award “alimony.” The necessity for that fiction, however, went away with Ferguson and its progeny. Post-Ferguson, we understand that an equalizing payment may be necessary to divide the equities in divorce, regardless of title. So why don’t we call it an “equalizing payment” or something similar, and limit use of the term “alimony” to payments intended to replace or supplement income?
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