What isn’t There Can Make a Big Difference
April 11, 2016 § Leave a comment
Dee Myrick filed a Complaint for Divorce against her husband, John, in 2013. The complaint was based on the fault ground HCIT. At a temporary hearing, the chancellor ordered John to pay temporary alimony.
Later, the parties withdrew fault allegations and entered into a consent for divorce on the ground of irreconcilable differences. The contested issues submitted for adjudication were: “property division including allocation of debt”; attorney’s fees; and “division of all real property.” Alimony was not mentioned.
Following a trial and rehearing motions, the chancellor divided the marital estate and awarded Dee $600 a month in periodic alimony. John appealed the award of alimony.
In Myrick v. Myrick, decided February 23, 2016, the COA reversed on the issue of alimony and remanded. Judge Barnes wrote for the court:
¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:
If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.
Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a creature of statute,” and the parties must strictly adhere to the statutory mandates of irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).
¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable differences. She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November 2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month to Dee in lieu of the house payment.
¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable differences divorce. It listed matters the chancellor should decide as “property division, including allocation of debt”; attorney’s fees; and “division of all real property.” No mention was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault grounds. The chancellor had, however, ordered the temporary relief of alimony when the divorce sought was based on fault grounds, rather than irreconcilable differences.
¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable differences-divorce case because the consent failed to comply with required statutory language, and the parties failed to set forth with specificity the issues to be decided by the court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16). Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he cannot now award it.
¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss. Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to consider an award of attorney’s fees in a divorce action where the parties did not include this issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support, and equitable distribution because the parties stated in their consent agreement the only issue the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d at 926 (¶12).
¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of “property division” analysis, and is therefore proper here, citing the Ferguson factor regarding “the extent to which distribution can eliminate future periodic payments.” Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute is clear that the resolution of all issues must be specifically set forth in the consent agreement. The court’s award of periodic alimony was without authority and must be reversed.
The court remanded rather than render for Ken because the chancellor had originally ordered Ken to pay Dee lump-sum alimony “based on need.” The COA instructed that, on remand, the chancellor was to clarify whether the lump-sum alimony was part of property division, which could be reinstated, or was alimony, which could not.
It makes perfect sense that, if something is left out of a negotiated agreement such as a consent, it should be assumed that its omission came about as a result of negotiation. The statute requires that all contested issues be clearly set forth. If you leave something out, unless the other side agrees to let it in, you won’t be able to get it in.
“Quote Unquote”
April 8, 2016 § Leave a comment
“Go to the edge of the cliff and jump off. Build your wings on the way down.” — Ray Bradbury
“Either life entails courage, or it ceases to be life.” — E. M. Forster
“I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. 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
What You Need to Tell Your Client About Court Appearance
April 6, 2016 § 2 Comments
Your client will be a whole lot more effective and confident if you will instill a few principles about appearing in court. Here are some I would recommend:
- Always be on time. Nothing says “I don’t respect this court and anything about it” more than failing to be on time. Being late is a good way to start off on the wrong foot, sort of like spotting your opponent 3-4 baskets at the beginning of a hoops game, or a touchdown in football, or 5 runs in baseball. If your client is the chronically-late type, suggest that he calendar the event for a half-hour earlier than actually scheduled. If parking is a problem at your courthouse, urge your client to build in an extra 15 minutes for parking.
- Dress for success. Business casual is fine. T-shirts with obscene messages, jeans with more holes than cloth, dirty and smelly clothes, and any attire that gives the impression that it was acquired from a dumpster will send an overly-negative message. I used to tell clients to avoid school logos and colors: if the judge went to a rival school, he or she may wonder whether there is some nose-thumbing at play; if he or she went to the same school, the judge may think there’s some brown-nosing going on.
- Speak up. The judge has to hear what the witness says if the judge is going to take it into account. Not every courtroom has state-of-the-art amplification.
- Don’t speak over anyone. This is a chronic problem that can result in an unintelligible record. Tell your client to wait until the question is completed before speaking. Never interrupt the judge.
- When you hear “Objection” or “Object,” stop speaking. Let the judge rule and follow the instructions of the court. Objections are one way you can protect your client, and if she persists in answering over objection, she may hurt her case.
- Answer the question asked; don’t volunteer. Most questions call for a simple “yes,” “no,” “I don’t know,” or a simple date, fact, number, or the like. Volunteering information is almost always unhelpful, and can be damaging. Example: “No, I have never been convicted of a felony … but … I have fourteen convictions for petty theft, shoplifting, and simple assault.” And remember, “I don’t know” is a perfectly legitimate answer; wading off into speculation will only make trouble.
- Be familiar with the 8.05. Know how the figures for income, expenses, debt, and assets were derived. Be able to explain and defend them. It’s never impressive when a witness says something like “I don’t know where that $250 figure for entertainment came from; I guess my lawyer put that there.
- Attitude makes a difference. A beautiful butterfly receives more favorable treatment than a scorpion. An earnest witness who clearly is trying to be truthful and doing her best will receive more favorable consideration than a petty, spiteful, sarcastic, bitter, argumentative, evasive witness. It’s just human nature.
- Know your case. Help your client understand what is needed to prove his case, and the best ways to answer truthfully the key questions. Go over the major points that he will face on cross examination.
- Your judge has idiosyncracies. Everyone does, even judges. If you know from experience that the judge does not want people chewing gum in the courtroom, caution your client not to d it. If your judge hates cell phones going off, warn the client to turn his off. And so on.
The Probate Lawyer’s Fiduciary Duty
April 5, 2016 § Leave a comment
What exactly is the duty owed to beneficiaries by a lawyer who represents the executor of an estate? Is there a fiduciary relationship?
In the MSSC case Gibson v. Williams, Williams & Montgomery and Montgomery, decided March 10, 2016, the court raised that question in the context of a legal malpractice claim.
Bobby Gibson had sued the lawyer and law firm over administration of his deceased wife’s estate, claiming wrongful conduct. The defendants filed a motion for summary judgment, which the Special Chancellor granted, and Bobby appealed.
On appeal, the MSSC reversed. One of the arguments defendants had raised in the summary judgment was that they owed Bobby no fiduciary duty, and hence he could not sue them for violation of a duty they did not have. Justice Dickinson addressed the point in the court’s opinion:
¶50. It is axiomatic that “a fiduciary duty must exist before a breach of the duty can occur.”[Fn 43] Attorney-client relationships give rise to fiduciary duties as evidenced by this Court’s recognition of legal-malpractice claims based on fiduciary obligations. [Fn 44] And as discussed earlier, we hold that a genuine issue of material fact remains on the issue of whether such a relationship existed between Montgomery and Bobby.
[Fn 43] Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485 (Miss. 2010) (citing Black’s Law Dictionary 564 (5th ed. 1979)).
[Fn 44] See Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).
¶51. But the absence of an attorney-client relationship does not foreclose the possibility of the existence of a fiduciary relationship. In Mississippi, “[a] fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears ‘on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.’” [Fn 45] So fiduciaries’ duties may arise as a matter of law from certain specified relationships such as attorney and client; or they may be created by the facts and circumstances of a particular relationship, taking into account the above factors.
[Fn 45] Id. (citing Milner v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988); Matter of Estate of Haney, 516 So. 2d 1359 (Miss. 1987)) (emphasis added).
¶52. In Baker Donelson, we recognized that, for decades, this Court has held that fiduciary relationships can arise in a variety of contexts, and that relationships between attorneys and third parties can give rise to a fiduciary relationship—and the requisite fiduciary duties—despite the absence of an actual “attorney-client” relationship. [Fn 46] Accordingly, the general rule in Mississippi is that, under certain facts and circumstances, attorneys can acquire fiduciary obligations to third parties who are not their clients where no attorney-client relationship is present. [Fn 47] Fiduciary relationships often turn on questions of fact related to exertion of influence, whether a party trusted and relied on another party, and whether the reliance was justified.
[Fn 46] Baker Donelson, 42 So. 3d 474, 485 (Miss. 2010).
[Fn 47] Id. 23
¶53. In other words, while it is true that we have never held—and we do not hold today—that attorneys for estates always owe fiduciary duties to every estate beneficiary, we see no reason to carve out a rule of special protection for estate attorneys, exempting them from any beneficiary claim of a fiduciary relationship. An attorney for the estate may, under certain circumstances, owe fiduciary duties to a beneficiary of the estate based on the same considerations relevant to determine fiduciary duties to all third parties. The existence of these fiduciary relationships are questions to be determined in the trial court, and here, we believe sufficient evidence exists in the record for a factfinder to conclude that Montgomery owed Bobby fiduciary duties, even without a finding of an attorney-client relationship.
¶54. And, should the trial court find that Montgomery assumed fiduciary duties to Bobby, we also find that—viewing the facts and allegations in the light most favorable to Bobby—Montgomery allegedly induced Bobby into signing a petition without first informing him of the consequences. This, in effect, caused Bobby to waive his statutory rights to contest and renounce Debbie’s will. Montgomery approached Bobby under circumstances which, if not enough to create an attorney-client relationship, could support an inference of dependence and trust, as Montgomery purported to have Bobby’s interests in mind and to exercise control over Debbie’s estate. There is evidence in the record to support Bobby’s claim that Montgomery coerced or compelled him to deduct $50,000 of life-insurance proceeds to fund a bequest in Debbie’s will. These acts, if true—and assuming a fiduciary relationship is found to have existed—would constitute a breach of that fiduciary duty. So genuine issues of material fact remain regarding Bobby’s fiduciary-duty claims.
¶55. To be clear, we do not address today the duties of attorneys who represent executors and administrators of estates. Montgomery claims he was the attorney for the estate and not for the executor of the estate. In thirty filings with the trial court, Montgomery was either listed as or signed as the “attorney for the Estate.” Indeed, we are unable to locate a single filing in which Montgomery identifies himself as, or claims to be, an attorney for the executor. Additionally, Montgomery is identified as attorney for the estate within the trial transcript and the appellee’s brief. And finally we note that, within the first five minutes at oral argument, Montgomery’s own counsel unequivocally stated that nothing in the record indicates anything other than that Montgomery and his law firm acted as attorneys for the Estate.
So the answer to the question, then, is “quite possibly.” It’s something to bear in mind as you go about the business of handling an estate. I recommend you read the entire opinion, especially the recitation of facts.
April 4, 2016 § Leave a comment
I am globetrotting for the next little while. Posts are stockpiled and will be automatically published; however, I will not likely get to approve comments. So if you have a comment sitting there out of view, be patient. I will get to it when I do.
Ciao.
So Long to Sue
March 31, 2016 § 3 Comments
Sue Franklin took the position of Court Administrator in Lauderdale County on February 24, 1986. Her tenure ends today with her retirement at the close of business, after more than thirty years’ service in the position.
Attorneys, paralegals, secretaries, office staff, and judges who dealt with her will, I am confident, attest to how helpful, cheerful, and accommodating she has been. One of her salient qualities is that Sue never takes anything too seriously, unless it comes to protecting the time and security of her judges, and then she goes into full-court-press mode.
Sue has been: paper-work-shuffler, quasi-secretary, advisor to confused lawyers and staff, scheduler, commiserator, receptionist, liaison to AOC, and a myriad of other roles that have freed up the chancellors to devote their attention to substantive matters.
We had a going-away reception for Sue Tuesday, and most of the local bar, courthouse personnel, her family, and friends attended. It was festive and fit Sue’s sunny personality. Here is a photo of the cake made especially for the occasion:
Anyone who has ever had any dealings with Sue would agree that the cake is spot-on.
Court administrators did not become state employees until July, 1994, when AOC went into business. Sue and others in similar capacities around Mississippi at the creation helped design the position from scratch. Sue is certainly one of the longest-serving in the job, if not the dean of Mississippi court administrators.
We will miss Sue’s wicked sense of humor, her willingness to roll with the punches, her devotion to her judges and lawyers, and her high spirits.
Best wishes in your retirement, Sue. May you live long and enjoy your freedom to spend time with your children and grandchildren.
Bell Save the Date
March 30, 2016 § Leave a comment
Dean Deborah Bell’s annual Family Law CLE is a must if you expect to be current in your domestic law practice.
This year’s dates and locations:
- July 8, 2016 — Oxford
- July 22, 2016 — Gulf Coast
- August 5, 2016 — Jackson
An Agreement to Agree is not an Agreement
March 29, 2016 § Leave a comment
Ken and Lauren Moreland agreed in their irreconcilable divorce to the following provisions:
Kenneth Moreland shall pay one-half (1/2) of all expenses of the minor child for up to two (2) extracurricular activities and the reasonable age appropriate activities of the minor child which the parties agree are reasonable and necessary for the minor child.
…
The parties shall be responsible for one-half (1/2) of all preschool and/or private school tuition and expenses for the minor child attending preschool and/or private school, until graduation, including but not limited to registration fees, school uniforms, school supplies, lunches and any other expenses due to the school or as a result of the minor child attending school if the parties agree to enroll [the child] in a private preschool or school. [Emphasis added]
In Moreland v. Spears, handed down March 1, 2016, the COA held (at ¶11) that the italicized language required the agreement of both parties before Ken became obligated under the divorce contract to pay any part of those expenses. Since Ken never agreed, he was not bound to pay.
The very purpose of a contract is to create an agreement that is enforceable in a court of law. It’s a basic principle of contract law that a mere agreement to agree is no contract. See, e.g., Intrepid, Inc. v. Bennett, 176 So.3d 775 (Miss. 2015).
I have seen many PSA’s with similar provisions, and I always ask from the bench whether the party understands that there is no obligation if the other party does not agree. Most of the time the cheery, optimistic answer is that no problem is expected, and that, surely, the other party will “do the right thing.” To that, I always warn that if (s)he does not, no court can make him or her do the right thing under the terms of this agreement. Occasionally, the party will ask to go back to the drawing board. That’s the wiser course.
If you’re going to include Moreland-like language in a PSA, be sure to advise your client of the pitfalls. Better still: put it in writing and have your client acknowledge receipt by signing it.
Easter Monday
March 28, 2016 § 6 Comments
…
God is not in this place; the rock is rolled away
and He has gone down into the neighborhoods
to suffer with the powerless, the criminals, the poor,
to bring them peace, justice, loaves, fishes.
He is not hidden in a cloud of incense or jumble of words;
God is what God does, not what we think of Him,
not what we say about Him, nor what we believe about Him,
God acts, and His acts are what and where He is.
We have thought too much on God,
the inscrutable ways and mysteries of Him,
probed His meaning so unknowable;
sought Him, everywhere but where He is.
Like visitors to the bottom of the sea
lurching in the oppressive dark current,
we see not what we gaze upon,
turning our eyes upward to the light.
Look not up, but here: God is with us, right beside us;
where we are bombed, terrified, starved, gassed;
loved, hurt, sick, strong, worried, happy, poor, sad,
comfortable, ignorant, old, young, feeble, He is here.
We have thought like thought could know Him,
yet when a shadow falls, it is only a shadow,
not the awakening or the apocalypse;
enlightenment eludes us like the brush of a butterfly wing.
God showers grace and mercy on us in a bouquet of love;
that is what God does, and that is how we will know Him,
here, right beside us, among us, feeling what we feel,
holding our hand if we will only let Him.
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