Partiting the Former Marital Residence
January 14, 2016 § 2 Comments
Robert and Betty Coleman were divorced in 2002. Under the terms of the divorce judgment, Beverly got exclusive use and possession of the former marital residence, which was situated on family land deeded to the couple by Beverly’s mother, until the parties’ minor child attained majority age. Beverly was responsible to pay the mortgage debt, taxes, and insurance on the property, and the parties were to split equally any maintenance expenses. The judgment did not spell out what was to be done when the child turned 21.
In the years following the divorce, Beverly lived in the home and dutifully paid the sums assigned to her. Robert never paid any of the maintenance expenses.
When the child turned 21 in 2013, Beverly filed an action, apparently for modification of the divorce judgment, seeking possession, title to, and ownership of the home.
Robert counterclaimed for partition, and he filed a motion for a summary judgment that partition, rather than modification, was the proper avenue to accomplish the division. The chancellor agreed with Robert, ruling that “the parties are not married, the property is no longer the marital homestead and the property is subject by law to a division by partition as provided by statute.” That’s a neat, pinpoint ruling that avoids the problem that property division may not be modified.
A hearing was held on the petition, and the chancellor ruled that Betty should have title. He adjusted the equities by ordering Beverly to pay Robert $34,103.70, which amounted to his half-equity in the property at the time of the divorce adjusted upward for appreciation over time.
Robert appealed, arguing that the trial court impermissibly modified the divorce judgment and unfairly partited the property.
In Coleman v. Coleman, handed down January 12, 2016, the COA, by Judge Griffis, affirmed.
So, did the chancellor improperly modify the divorce judgment? Judge Griffis responds:
¶7. “A cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the chancellor essentially modified the divorce decree and that this modification was improper.
¶8. “This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and the chancellor stated in his judgment that “the parties are no longer married, the equities need to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s decision was based upon the partition statutes and he did not modify the divorce decree, the Court finds this issue without merit.
And did the chancellor abuse his discretion in how he awarded title and adjusted the equities? Again, Judge Griffis:
¶9. When parties seek a partition of land, “the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title.” Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and determine all claims of the several cotenants . . . .” Id.
¶10. Generally, “a partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)). Robert and Beverly agreed that the home could not be divided in kind and that it should be sold under statute. They also agreed to a private sale to allow Beverly to purchase the home. A chancellor may order the sale of property and “a division of the proceeds among the cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004). As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities between and determine all claims” of Robert and Beverly and divide “the proceeds” between Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11.
As for how the chancellor adjusted the equities, the COA went through the court’s analysis, and found it proper that Robert was awarded his equity at the time of the divorce plus its appreciation, and Beverly was awarded her equity at the time of the divorce, plus its appreciation, plus the additional equity that accrued over the years due to her payment of the mortgage debt. The COA found no merit in Robert’s argument.
Most crucially, the trial judge’s findings were supported by substantial evidence:
¶15. Keeping in mind the appropriate standard of review, this Court holds that the chancellor’s findings of fact and conclusions of law are supported by substantial evidence and are not an abuse of discretion. Robert did not provide any alternatives to the findings of the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The chancellor’s well-reasoned conclusions are supported by the record and the briefs of the parties. The partition statutes allow for the chancellor to divide the proceeds among the cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After inspecting the record, this Court is unable to see that Robert was denied any of his rights as a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.
This is not one of those spectacular, keeper cases that one whips out every few trials. It’s just a workaday, nuts-and-bolts decision that provides a glimpse into the quotidian matters that stream steadily through the chancery courts every day, and how the chancellors are called upon to fashion common-sense, practical solutions.
A Return to Basics in Third-Party Custody
January 12, 2016 § Leave a comment
If you’ve done any amount of third-party child custody work in the past several years, you can’t be blamed for scratching your head in bewilderment over how to advise your client about the limits and parameters of the natural-parent presumption.
The presumption is that the best interest of the child is served by being in the custody of a natural parent, rather than a third party. The presumption may be overcome by clear and convincing evidence that: (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise to have custody. Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013).
The problem is defining exactly what kind of conduct satisfies the Davis v. Vaughn test. A recent MSSC case defines that for us.
Concetter Davis and James Wilson had a child, Sha, born April 20, 2003. James filed a paternity and custody action in which he was determined to be the father, and Concetter was awarded custody. Concetter died in 2011, and her family refused to turn Sha over to James. He filed an action in chancery Court, and the chancellor awarded custody to Concetter’s mother, Perlean Davis. James appealed, and the COA reversed and remanded for a finding whether the natural-parent presumption had been rebutted. On remand, the chancellor did not take further evidence, but rather made new findings of fact based on the existing record, again awarding custody to Perlean. James again appealed, and the COA affirmed. On cert, the MSSC reversed and remanded.
In the case of Wilson v. Davis, handed down January 7, 2016, the MSSC laid out in particular what is required to be shown in order to overcome the natural-parent presumption. Justice King wrote for the court (several lengthy footnotes omitted):
¶8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to “honor[] and protect[] the fundamental right of natural parents to rear their children.” Id. However, this Court takes the opportunity to note that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Moody [v. Moody], 211 So. 2d [842] at 844 [(Miss. 1968)] (emphasis added). With this decision, we mark a return to that principle. The natural parent presumption may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm. In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted, and consequently proceed to a determination of whether a custody award to the challenging party will be in the child’s best interests. Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably “better” things. See Moody, 211 So. 2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.”). This “exceptional circumstances” finding means more than that a child’s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 748 A.2d 558, 565 (N.J. 2000). More than simply best interests is required, because if that “is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id. [Emphasis added]
¶9. If the court finds that custody should be granted to the third party under this standard, it is required to make very specific findings of fact on the record. We again emphasize that this is a high threshold. However, we believe this standard will allow chancery courts to reconcile the fundamental rights of natural parents to raise their own children with the primary concern in a custody case, the best interests of the child. See Davis, 126 So. 3d at 38 (“Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede [sic] the best interests of the child.”).
¶10. Turning to this case, we find that the chancellor erred for several reasons. The original hearing, conducted in the vein of a modification of custody, was held in January 2012. In April 2013, the Court of Appeals reversed the chancery court, finding that it had applied the incorrect standard and had not determined whether the natural parent presumption was rebutted. In July 2013, after a year and a half had passed with a great potential for changed circumstances, and without holding a hearing in which both parties were on notice of the issue of rebutting the natural parent presumption, the chancery court simply amended its original order. The chancery court should have held a hearing and received and considered evidence regarding whether the natural parent presumption was rebutted. See Yelverton, 26 So. 3d at 1055, 1057.
¶11. Furthermore, the evidence found by the chancellor was clearly insufficient to rebut the natural parent presumption. First, the court relied on evidence that James dates and marries women much younger than himself, and that these relationships overlap and include adultery. This Court has noted that marital fault, including adultery, may not be used as a sanction in custody awards. Brekeen v. Brekeen, 880 So. 2d 280, 287 (Miss. 2004). While this is not a divorce action, if adultery may not be sanctioned by denial of custody in a divorce action, it certainly follows that such behavior will be difficult to justify as sufficient to rebut the natural parent presumption. While some of James’s relationship behavior may cause concern, no evidence whatsover was adduced that such behavior has had any actual detrimental effect on Sha, thus the evidence does not show that James’s conduct “is so immoral as to be detrimental to the child.” See Davis, 126 So. 3d at 37 (emphasis added). Additionally, James married his current wife before Concetter passed away and was still married and living with her at the time of the hearing. Indeed, the last extramarital affair and relationship with a younger woman noted by the chancellor were with James’s current wife, and began in approximately 2009, more than two years prior to the hearing. The chancellor made no findings that James was currently engaged in adulterous or immoral relationships, and moreover, made no findings that he was involved in any extramarital relationships that harmed or influenced Sha in any way. See Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992) (where father and his wife drank alcohol, father used to take drugs but had passed random drug tests by his employer for the past six years, a paternal relative smoked marijuana in front of the child once, and father only had minimal contact with child prior to mother’s death, the Court found “a stronger case must be made against [the father] and matters of more current nature need to be shown to establish that he is unfit as a parent.”).
¶12. The chancellor also cited animosity between Concetter and Annette and James, including physical altercations, as reason to deny James custody. While certainly noteworthy, as it appears in the best interests of Sha to have her mother’s memory and her grief for her mother honored, Concetter has passed away, and there is thus no present danger of such animosity or confrontations. These facts are not sufficient to rebut the natural parent presumption, as they do not bear on James’s fitness or detrimental immorality, but they may be a consideration in a best interests analysis.
¶13. The chancellor also cited the anger issues of Annette’s two sons as a reason to rebut the natural parent presumption. Again, such issues are certainly of concern. Yet, the evidence indicated that neither Sha nor her stepsister had been injured or harmed by the boys. The evidence also showed that the parents were seeking intensive therapy to address the issues. Anger issues in the home of a natural parent that pose a potential danger to a child are certainly something a chancellor should examine in detail. However, in this case, the determination of harm was not based on any proof of actual or probable harm to Sha, but rather, based upon pure speculation on the part of the court. Thus, this is not an appropriate reason to find James unfit or so immoral as to rebut the natural parent presumption.
¶14. Because none of the facts found by the chancery court are sufficient to rebut the natural parent presumption, we must reverse the chancery court on this issue.
So, it takes clear and convincing evidence of probable serious harm or detriment to the child if placed with the natural parent, and placement with the third party is necessary to prevent that probable harm.
The footnotes in this case are chock-full of authority on third-party custody. The only reason I did not include them is that this post would have rivalled Gone With the Wind in length if I had.
This is the case I commented on previously for the proposition that on remand the trial court may rely on the previous record, or may take more evidence. That take, apparently, does not apply any longer in contested child custody cases, particularly third-party custody cases.
Mopping Up After the Divorce
January 11, 2016 § 2 Comments
What do you do when the divorce trial is concluded, the final judgment has been entered, and the post-trial motions have been disposed of? If there’s not going to be an appeal, you just make sure your bill is paid, shake your client’s hand, usher him to the door, wish him luck, say farewell, and shut the door behind him, right?
Well, not exactly.
Do you know whether your client still has his ex-wife named in his will? What about as beneficiary of his life insurance, or survivor on his IRA or 401(k)? Does he still have his ex as POD or survivor on any checking or securities accounts?
I read an article written by a financial advisor recently in which she related an encounter with a newly-married couple, both of whom had been divorced several years before. Both husband and wife had wills that still named ex-spouses as beneficiaries, and the same with life insurance and retirement accounts. When she asked them why they had not been changed, both replied that no one had advised them that they should.
A case in my court recently brought up a similar problem. The wife in the divorce case insisted that she owned the marital residence because the PSA in her 2007 divorce (more than 8 years ago) provided that her ex would execute a special warranty deed conveying his interest to her. Only problem: he never did. So, since May of 2007 she has remained a joint tenant with right of survivorship with that man. If she had died before he tended to that little bit of finish-work, her estate would have to pay another lawyer to do what her divorce lawyer should have done in the first place, and it probably would have involved courtroom billable hours.
Years ago, a man hired me to obtain a QDRO to divide his 401(k) account. He had represented himself in the divorce that took place nearly ten years before. When the divorce was final, he had asked the lawyer who represented his wife how to go about getting the retirement account divided. The lawyer pointed out that he did not represent him, and virtually slammed the door in his face. When the client at last decided to get remarried, he thought that it was time to get the matter tended to, so he hired me. Here is how the PSA read:
The parties agree that wife shall receive the sum of $60,000 from Husband’s 401(k) account.
That was all it said. [For a post on what that 401(k) language should have included, click here]
So we filed a petition for the court to enter a QDRO for her to receive exactly that — $60,000. After being served with process, she went back to her divorce lawyer, who called me and pounded the table, insisting that she was entitled to ten years’ worth of interest. I pointed out that the agreement he had drafted did not have a time frame for payment, that neither party was obligated by the agreement to prepare a QDRO, that there was no interest provision, and that the only definite thing about it was the amount. He called me back a few days later and said his client was willing to settle for the $60,000, and they signed the QDRO, which was entered and the matter finalized. For ten years my client earned money using his ex’s money. Had her lawyer acted in her best interest, he would have gotten that QDRO entered immediately after the divorce judgment.
You might well ask, as I did when my client first hired me, why was his ex not screaming for her money? Well, in the ten years after the divorce she asked him about once a year if he still had her money. She was satisfied with his answers, but apparently no one ever advised her what she was losing by not getting that QDRO entered.
You might also inquire whether my client was unjustly enriched. I would agree that he was, indeed, enriched, but not unjustly so. He did not sleep on his rights. He did not draft the agreement. It was not his obligation to calculate her separate interest. She was wise to want to settle for the principal sim, because if she had wanted to obtain a court ruling that he had been unjustly enriched, and directing him to disgorge any interest received on her money, she would have had to pay the attorney to pursue it, and likely would have had to pay a CPA to calculate the interest and testify as an expert. After paying those folks, she would be lucky if she got to walk away with the $60,000.
Another nightmare scenario involves credit cards. I represented a man in a routine irreconcilable differences divorce. The PSA provided that each would pay the debts in his or her own name, as well as debts incurred in the name of or against the credit of the other. Thank goodness for that specific language, because he came in a year or so later with a letter from a credit card company reporting that an account in joint ownership was in default and making demand on him to pay more than $10,000. Turns out that shortly before the separation his wife had opened one of those accounts the company had solicited by mail, signing her husband’s name, and kept the account concealed from him. Then, after the divorce, she used it to supplement her income. We notified her that she had so many days to pay the account in full or we would sue. She borrowed money from her family, paid it off, and the account was closed. My client’s credit rating took a hit, but that and a modest legal fee were his total damages.
Lesson learned: it might not be a bad idea in the course of a divorce case to have your client run a credit check.
All of this boils down to a simple professional consideration that I have mentioned many times here: When the case is concluded, your client wants to be finally done with it, and she does not want to have to pay another attorney to clean up after you.
Actually, many of these things can be tended to before the divorce is concluded. That deed can be prepared, joint accounts closed, wills changed, bills of sale signed, agreed QDRO signed by the parties, and so on, with the originals held in the lawyer’s file until the judgment is entered.
When you are through with the divorce, help your client through the aftermath. Make sure she revokes all wills naming the ex as a beneficiary. Make sure there are no financial assets not covered by the divorce judgment that are joint, or have survivorship provisions. Make sure that there are no outstanding joint debts not addressed in the divorce. If a QDRO or deed is required for your client’s benefit, get it done ASAP. People are dying every day. You don’t want one of them to be the person you need to finish up your work.
“Quote Unquote”
January 8, 2016 § 1 Comment
“The woods were silent until the first squeak of cricket, followed by young frogs in the creek below and the rising drone of cicadas. He inhaled the heavy scent of summer earth, a loamy musk that settled over him like a caul. He was home.” — Chris Offutt in The Good Brother
“I fancied I could smell the Mississippi, which for me is southern America in a liquid form, signifying fried catfish, roasting ears dipped in butter, and watermelon in the cool of the evening, washed down with corn liquor and accompanied by the blues.” — Alan Lomax in The Land Where the Blues Began
“They have thundered past now and crashed silently on into the dusk; night has fully come. Yet he still sits at the study window, the room still dark behind him. The street lamp at the corner flickers and glares, so that the bitten shadows of the unwinded maples seem to toss faintly upon the August darkness. From a distance, quite faintly, he can hear the sonorous waves of massed voices from the church: a sound at once austere and rich, abject and proud, swelling and falling in the quiet summer darkness like a harmonic tide.” — William Faulkner in Light in August
Rules for Interpreting a Contract
January 5, 2016 § Leave a comment
Only yesterday we discussed the importance of clarity in drafting agreements for your clients. What the parties were thinking and believed at the time is of no consequence in interpreting a contract unless the court first finds that the language is ambiguous. Only then can the court delve into what went into and what was behind the drafting.
In the case of Gibbs v. Moody, decided December 1, 2015, the COA, by Judge Carlton, quoted at ¶ 13 from Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751-753 (Miss. 2003), to lay out the process the trial court is required to follow:
The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties. In contract construction cases[,] a court’s focus is upon the objective fact—the language of the contract. A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other. A reviewing court should seek the legal purpose and intent of the parties from an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. The reviewing court is not at liberty to infer intent contrary to that emanating from the text at issue.
This Court has set out a three-tiered approach to contract interpretation. Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. We must look to the “four corners” of the contract whenever possible to determine how to interpret it. When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. On the other hand, if the contract is unclear or ambiguous, the court should attempt to harmonize the provisions in accord with the parties’ apparent intent. Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. The mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.
Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Where the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. It is only when the review of a contract reaches this point that prior negotiation, agreements[,] and conversations might be considered in determining the parties’ intentions in the construction of the contract. Of course, the so-called three-tiered process is not recognized as a rigid “step-by-step” process. Indeed, overlapping of steps is not inconceivable.
I reiterate: If you intend for your contract to say a particular thing, then include language that expressly says that particular thing. Just because you can draw an inference from your draftsmanship does not mean that a judge — or anyone else — will draw the same inference. And unless a judge rules that the language is ambiguous, the door to your thought processes and what you intended remains locked.
Say What You Mean and Mean What You Say
January 4, 2016 § 2 Comments
Lee and Leslie Voulters were divorced from each other in 2004 on the sole ground of irreconcilable differences. The divorce judgment incorporated their PSA, which provided that Lee would pay Leslie lump-sum alimony in the sum of $1.08 million at the rate of $10,000 a month until paid in full. He also agreed to maintain a policy of life insurance on his life with a benefit of $1.08 million, with Leslie as beneficiary.
When Leslie filed a contempt action in 2013 charging Lee with missing some lump-sum payments and with failing to provide proof of life insurance, Lee counterclaimed, asking the court to interpret the PSA that the purpose of the life insurance was to protect Lee’s payment of lump-sum alimony, and that the obligation would terminate when the lump-sum alimony was paid in full.
Spoiler alert: There is no provision in the PSA that links the life insurance requirement to the lump-sum-alimony requirement.
Here are the pertinent parts of the agreement:
LUMP SUM ALIMONY/SPOUSAL SUPPORT
Lee shall pay spousal support to Leslie, in the form of lump sum alimony, the total sum of $1,080,000.00, payable in monthly installments of $10,000.00 each for a period of nine years. Such payments for support shall be due and payable by automatic bank transfer from Lee’s checking or other account directly into Leslie’s checking account, commencing on the fifth day of April, 2004, and shall so continue for one hundred and seven consecutive months thereafter. Lee’s obligation to pay such support to Leslie shall be fully vested upon the entry of a Final Judgment of Divorce in this cause, and shall not be modifiable. Lee’s obligation to pay such support shall not terminate upon Leslie’s death or remarriage, nor shall it terminate upon Lee’s death. However, despite the conventional definition of lump sum alimony[,] . . . these payments by Lee to Leslie under this Agreement shall be taxable to Leslie, and deductible by Lee, for state and federal income tax purposes.
LIFE INSURANCE
Lee agrees to maintain life insurance on his own life in an amount not less than one million, eighty thousand dollars ($1,080,000.00), naming Leslie as primary beneficiary thereon. Proof of such insurance coverage shall be furnished to Leslie within fifteen (15) days following the date of execution of this Agreement. Furthermore, Lee shall direct his insurance carrier to provide coverage information to Leslie at least twice a year if requested by Leslie.
. . . .
EFFECT OF AGREEMENT
. . . .
The respective rights and obligations of the parties hereunder are deemed independent and may be enforced independently irrespective of any of the other rights and obligations set forth herein. This Agreement contains the entire understanding of the parties, who hereby acknowledge that there have been and are no representations, warranties, covenants, or understandings other than those expressly set forth herein.
RELEASE AND WAIVER
Subject to the provisions of this Agreement, each party has released and forever discharged . . . his or her heirs, legal representatives, Executors, Administrators, and assigns . . . from all causes of action, claims, right or demands . . . in law or in equity . . . except . . . causes of action for divorce or separation action now pending . . . . Each party releases, waives, and relinquishes any and all rights . . . to share in the estate of the other party upon the latter’s death . . . . (Emphasis added.)
Both parties offered testimony about their intent in negotiating the language into the agreement. Lee argued that the agreement was ambiguous because it had no termination date. Leslie argued that she negotiated it for support, which she needed because her estate was meager in comparison to Lee’s.
One question before I tell you how the chancellor ruled: do you see anywhere in that language quoted above any link between the life insurance obligation and the lump-sum alimony?
The chancellor ruled that the agreement was unambiguous, and that it did require Lee to maintain the life insurance regardless of the status of the lump-sum payments. Lee appealed.
On December 8, 2015, the COA affirmed in Voulters v. Voulters. The opinion by Judge Barnes includes a nice recitation of the law of contract interpretation, life insurance and insurable interests, and even attorneys fees in contempt actions and on appeal. I definitely commend it to your reading.
What I want to focus on here is this: If you want your agreement to mean a particular thing, then make sure there is language in it that says that particular thing. Remember that when the judge is called on to interpret a contract, she is bound by the language within the four corners of the document, and she may not accept parol evidence to vary or “explain what the parties meant” by those terms unless she first finds the agreement to be ambiguous. Just because Lee did not include a termination date for his life insurance obligation, that did not render the agreement ambiguous. It rendered instead the meaning that it had no termination date. In other words, it meant exactly what it did and did not say.
Be careful in your draftsmanship. Take time to make sure it says exactly what your client needs it to say. I think I was saved a hundred times or more by the simple practice of drafting the agreement and setting it aside for at least a day. I would then pick it up and read it afresh, often catching something that could be read two ways, or was simply not clear enough to do the job. Sometimes I would imagine myself to be another person altogether, looking at it as an outside observer. Anything to get an objective perspective.
Remember that some day someone entirely unconnected with the negotiations and the emotion of the divorce case is going to be reading your work with absolutely none of the knowledge that you had when you drafted it. It may be a judge, or it may be another lawyer having to represent your client, or — heaven forbid — a lawyer looking for a cause of action against you. That’s why it’s critical when you draft an agreement to give some thought and care to the words, phrases, and language construction that you use. That’s what your client is paying you for: to have absolutely no more trouble out of this matter after the final judgment is entered.
Reprise: Getting Out While the Getting’s Good
December 30, 2015 § Leave a comment
Reprise replays posts from the past that you might find useful today.
WHEN IT COMES TIME TO BAIL OUT
July 28, 2011 § 4 Comments
Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.
Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?
Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.
Here is what you have to do, step by step:
- File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
- File the motion and send a copy of it with certificate of service to opposing counsel and the client.
- Notice the motion for hearing.
- If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
- If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.
Several caveats:
- If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
- No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
- You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
- Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
- Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
- Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.
Beam to MSSC
December 29, 2015 § 6 Comments
Chancellor Dawn Beam of Sumrall was appointed yesterday to fill Justice Randy Pierce’s soon-to-be-vacated seat on the MSSC. Her appointment is effective February 15, 2016. She will have to stand for election in November, 2016, as mentioned in yesterday’s post.
Beam’s appointment continues the role of a chancellor on the high court. Pierce was a chancellor before his appointment to the MSSC.
The Jackson Clarion-Ledger’s article on the appointment and Judge Beam’s background are at this link. (You may encounter paywalls and annoying pop-ups and “surveys”)
From this Blog’s perspective, Judge Beam’s appointment is a major positive, since she is a top-notch chancellor, and knowledge of chancery practice and equity sometimes seems a mystery to appellate judges.
I only wish chancellors were not just a token one-seat allocation on each court. A huge portion of Mississippi trial-court practice is in our chancery courts. It’s where most Mississippians experience their everyday contact with our courts — in custody, divorce, probate, property, contract, commitment, and many other issues — that are what chancellors deal with on a regular basis.
And yet, it’s the big-money PI lawyers — defense and plaintiff — and felony-level criminal lawyers, who claim “legitimacy” and elbow aside chancery at the appellate level. That does not exactly serve most Mississippians at the grass-roots level.
We need more chancery representation on the MSSC and COA. Only those who have practiced in chancery court really understand our procedures and how equity operates. So I applaud Judge Beam’s appointment. She will do a superb job on the third floor of the Gartin Justice Building. I only wish we had one more — or a couple more — to give her a little more support.
Maxwell to MSSC
December 28, 2015 § 1 Comment
Reshaping of the MSSC is continuing with the appointment of Judge Jimmy Maxwell of the COA to the high court seat being vacated by Justice David Chandler. The appointment to the North Mississippi District seat, is effective January 1, 2016. Maxwell will have to run in a judicial election in November, 2016.
Chandler’s resignation earlier this month, to assume leadership of the state’s troubled foster-care program, created the vacancy to which Maxwell is appointed. Only the timing is surprising. It was widely known that Justice Chandler did not intend to run again when his term ended in 2016. Multiple sources said that Maxwell intended to run for Chandler’s seat if he did not run again.
One soon-to-be-vacant MSSC seat remains to be filled. Justice Randy Pierce is stepping aside to take over leadership of the Mississippi Judicial College, effective February 1, 2016.
Maxwell’s appointment will in turn mean a vacancy on the COA that will have to be filled from District One, which is the northeastern area of the state.
The Jackson Clarion-Ledger’s article on Judge Maxwell’s appointment is at this link. (You might encounter a paywall and annoyances like pop-ups and “surveys”)
A previous post on changes to the MSSC is here.
All of the 2015 judicial appointees, at both appellate and trial levels, will have to stand for election in 2016. This latest round of appointments, along with previous appointments and other appellate races that are expected to be contested, will make for an interesting judicial election cycle in 2016.
