“Quote Unquote”
September 4, 2015 § 1 Comment
“There is no way of telling people that they are all walking around shining like the sun.” — Thomas Merton
“Honor is the presence of God in man.” — Pat Conroy
“In his errors a man is true to type. Observe the errors and you will know the man.” — Confucius
What’s your biggest rant about …
September 3, 2015 § 11 Comments
… scheduling cases for hearing in chancery court? How could we improve?
Comments by lawyers and judges are welcome and invited. You may post as anonymous or use a screen name, but you must include a valid email address so that I can verify that you are a member of the legal profession. Your email address will not appear.
No personal attacks. Please do not name particular lawyers or judges. Please be brief and to the point. All comments by persons who have not been approved before are moderated, so it may take a while for your comment to appear if it is approved.
Have at it.
[NOTE: If we have good participation, your rants on various topics may become a regular feature.]
SOL and the PSA
September 2, 2015 § 7 Comments
We visited the COA decision in Moseley v. Smith here before. It’s the 2014 case in which the importance of a hold-harmless agreement in a PSA was underscored when the COA held that, although the husband’s underlying debt obligation may have been discharged in bankruptcy, his obligation to his ex-wife based on a hold-harmless clause was not.
There’s another aspect of that case that merits your attention.
On appeal the ex-husband argued that his ex-wife’s claim against him was barred by the three-year statute of limitations (SOL) applicable to contract claims. His position was supported by the case of D’Avignon v. D’Avignon, 945 So.2d 401 (Miss. App. 2006), which held that property division matters in a property settlement agreement (PSA) are governed by the three-year SOL that applies to contracts.
In Moseley, however, the COA changed its position and held that all PSA provisions are incorporated into the court’s final judgment of divorce and, therefore, the seven-year SOL governing enforcement of judgments applies.
Two thoughts:
- Remember that SOL is an affirmative defense that must be asserted by the party who claims it. It is not an automatic bar to the action, but rather a defense that must be affirmatively pled. In a recent case in my court the parties litigated the issue whether the ex-husband was in contempt for non-payment of installment lump-sum alimony. Some of the early payments were due more than seven years before suit was brought. No one raised a SOL issue; therefore there was no bar to obtaining a judgment on those unpaid amounts.
- Before a judgment expires, you can renew the judgment per MCA 15-1-43. The extension is for a period of seven additional years. Most property provisions of PSA’s are resolved before that initial seven-year period expires, but some do not.
Ready for Review?
August 31, 2015 § Leave a comment
If a chancellor orders joint custody to be effective only until the child turns five in 2017, at which time the matter will be reviewed, is that a final, appealable judgment?
That was one of the questions addressed by the COA in the case of Thames v. Thames, decided July 28, 2015. We discussed this case here before in the context of the reasonability of a joint custody arrangement.
I say it was “addressed” because the court dealt with it as if the appeal had raised the R54(b) argument as a jurisdictional issue. The appellant, though, did not argue it that way. Rather, she contended that the chancellor erred by violating the maxim that “equity delights to do justice completely and not by halves” when he failed to determine who would have custody of the parties’ daughter after she started five-year-old kindergarten.
What the chancellor actually said was that the parties could have the option either: (a) to agree to a review hearing in February, 2017; or (b) to certify the judgment as final and appealable per R54(b). Despite that, in the record there is no order or judgment agreeing to a review hearing, and there is no R54 certification.
Undeterred, Debra Thames appealed. The case was reversed on other grounds, but here is how Judge Lee dealt with Debra’s maxim argument:
¶10. While Debra does not argue that the judgment was not final and appealable, the underlying issue is the same, and that is whether any issues remain to be resolved [in the litigation before the chancellor]. Following the reasoning in Crider [v. Crider, 905 So.2d 706, 707-08 (¶¶3-5) (Miss. App. 2004)], we find that the judgment was final, and it disposed of all of the issues until Sofia starts five-year-old kindergarten. While the chancellor in this case did not specify the exact month and year in the final judgment as did the chancellor in Crider, the visitation schedule ends in February 2017 [Fn omitted], and the chancellor stated that the order is to remain in effect until further order of the court and only until Sofia starts five-year-old kindergarten. Furthermore, the chancellor gave the parties the option of agreeing to a future hearing to review custody or making the judgment a Rule 54(b) judgment. Either way, a future hearing was to be held to revisit custody. Formal recognition of the need to revisit custody before Sofia starts five-year-old kindergarten did not prevent the judgment from being final.
From this we can take away that a chancellor in a case such as this may leave open the possibility of a future custody arrangement based on a future event that will be a major turning point in the child’s life, such as beginning school, and the fact that it will need to be revisited will not affect its finality for appeal. Allowing chancellors this kind of flexibility provides more options for the trial judge to employ for the best interest of the child.
I think this is a very narrow holding, and you will be unsuccessful if you try in different set of facts to stretch this holding to justify an appeal from an incomplete judgment.
The Bar’s Economic Survey
August 27, 2015 § 6 Comments
I was looking to find time to summarize the results of the Bar’s 2015 economic survey when — Voila! — Philip Thomas did it handily on his Mississippi Litigation Review and Commentary blog yesterday. You will find his article at this link.
Mr. Thomas likes to poke fun at himself for his somewhat gloomy outlook about the state of legal practice in Mississippi — he humorously refers to himself as “Mr. Sunshine.” Yet it’s hard to argue with the numbers that show the legal profession in economic decline. It’s too soon to conclude that the decline is permanent or even long-term. We all know and have experienced that cycles of boom and bust have occurred in the legal field for as long as there have been people paid for dealing with the law.
There are, however, some structural factors that point to a more pessimistic future:
- The cap on damages has slowed down PI firms and defense firms alike, and that is not likely to change until the caps are removed.
- The economy is slow. Most Mississippians have not been able to climb out of the hole they fell into in the 2008 recession. As a result, they have less money to spend on lawyers and litigation and lawyers are retained only when absolutely necessary; when they are retained, they are under pressure to keep costs low.
- Another side effect of Mississippi’s sluggish economy is that case filings are down; in some districts they are ‘way down.
- The commoditization of legal practice continues to expand, putting pressure on lawyers to innovate or go extinct.
- Business has become on-demand, and people are used to having instant or near-instant access to what they want. Our court procedures, on the other hand, take months and years to reach even simple conclusions. Some of the ways that we practice law and administer our courts, using nineteenth-century techniques and concepts that are becoming increasingly unwieldy in the twenty-first century, encourage people to look for more efficient processes. They want to to avoid cumbersome court procedures and the expensive lawyers who work with them in favor of more streamlined, quicker means.
That’s the downside. The upside is that lawyers and judges are increasingly becoming awakened to these realities, and are beginning to find ways to adapt and survive. New forms of fee arrangements are making lawyers more affordable and accessible. Lawyers are using technology to speed up their communications with and service to clients. More and more state courts in Mississippi are using electronic access. And, as commoditization becomes more widespread, so will the need for lawyers to come in and clean up the self-inflicted mess.
I commend the economic survey to your study. It’s important to understand the trends, to think about how you will cope with them, and to plan for the future.
Equity Delayed is Equity Denied
August 26, 2015 § 2 Comments
If your trial judge in a bench trial takes a case under advisement and fails to render a decision within a reasonable time, MRAP 15 provides the remedy:
(a) When a trial judge in a civil case takes under advisement a motion or request for relief which would be dispositive of any substantive issues and has held such motion or request under advisement for sixty (60) days, the plaintiffs and the defendants shall each within fourteen (14) days thereafter submit a proposed order or judgment to the trial judge and shall forward to the Administrative Office of Courts, the trial court clerk and the opposing parties true copies thereof with a statement setting forth the style and number of the case, the names and addresses of the judge and of all parties and the date on which such motion or request was taken under advisement. On receipt of such proposed orders and notices, the Administrative Office of Courts shall calendar them and notify the trial judge and the trial court clerk of the filing. At any time thereafter that an order or judgment is entered on the motion or request for relief, the plaintiffs and the defendants shall, in writing, promptly notify the Administrative Office of Courts and the opposing parties of the date of entry of the decision; copies of such notification shall be sent to the judge and the trial court clerk. If no written notice of a decision is received by the Administrative Office of Courts within six(6) months from the date the case was taken under advisement, the Administrative Office of Courts shall confirm with the trial court clerk that no order or judgment has been entered and notify the Supreme Court. The Administrative Office of Courts will forward copies of its notification to the trial judge and parties and shall advise the judge and counsel that they are to respond to the notice within a specified period. The Supreme Court shall treat such notification as the filing of an application for a writ of mandamus by all the parties to the action and shall proceed accordingly. The notice of the Administrative Office of Courts of the time within which to respond shall satisfy the requirements of M.R.A.P. 21(d).
(b) The trial judge, not later than thirty (30) days prior to the expiration of the six (6) months from the date the case was taken under advisement, for just cause shown, may apply in writing to the Supreme Court for additional time beyond said six (6) months in which to enter a decision. Concurrently, the judge shall provide a copy of such application to each of the parties.
No one wants to tick off a chancellor who holds the fate of the client in his or her hands, but sometimes you just gotta do what you gotta do.
I mention this with the COA’s decision in Chipley v. Chipley, decided August 11, 2015, in mind. In that case, the Special Chancellor granted a divorce between Wanda and Kenneth Chipley on January 25, 2011, and directed the attorneys to provide, in effect, proposed findings of fact and conclusions of law on Ferguson factors within ten days. Thereafter, the case sat dead in the water for two years, until the MSSC ordered the chancellor to adjudicate the property division, which he did on February 15, 2013. After some post-trial-motion maneuvering that ate up the remainder of the year, Wanda filed an appeal on December 17, 2013, which the COA determined to be timely.
In its August 11, 2015, opinion (that’s four years and nearly eight months after the divorce), the case was reversed and remanded because the Special Chancellor failed to include a Ferguson analysis in his final ruling. It’s axiomatic that the judge’s decision must be supported by findings of fact and conclusions of law on Ferguson. Dickerson v. Dickerson, 34 So.3d 637, 644 (¶24) (Miss. App. 2010). It’s not enough merely to mention the factors. Lee v. Lee, 78 So.3d 326, 329 (¶10) (Miss. 2012). No analysis = reversal and remand. Reed v. Reed, 141 So.3d 450, 455 (¶18) (Miss. App. 2014).
Still to be dealt with are a motion for rehearing and possible cert petition before a mandate is issued, chewing up some more time in the Chipleys’ lives. After all that, they will return to where they started, still without a determination of their property interests. It will take some time to appoint a replacement Special Chancellor, since the original one has died, and the remand hearing will need to be scheduled to accommodate the lawyers, judge, and the parties, which likely will mean more delay and a trial either in the first quarter of 2016, if no further appellate proceedings are had, or much later if the case tarries in the higher courts. I wonder whether those assets that they are fighting over will still even exist after all that time.
The Same-Sex-Adoption Ban in Mississippi
August 25, 2015 § Leave a comment
I say “in Mississippi” above because, as I understand it, Mississippi is the lone state with a same-sex-adoption ban remaining on the books. That prohibition is now being challenged in federal court.
You can find that observation, along with some others by Anderson on Obergefell and its fallout, at this link.
Demarcation Date on Remand
August 24, 2015 § Leave a comment
The date on which the marital assets are assigned a value can make a drastic difference in the ultimate outcome of the equitable distribution. It’s a concept that we’ve touched on here before. In Lowery v. Lowery, 25 So.3d 274, 285-286 (Miss. 2009), the court said:
¶ 27. For purposes of determination of equitable division … the date for determination would be either the date of separation (at the earliest) or the date of divorce (at the latest). “Cases appear to hold that, as a matter of law, property acquired during separation is marital unless a support order has been entered…. However, a few cases suggest that the issue is a question of fact for the chancellor to decide….” Bell on Mississippi Family Law at § 6.02[3][b] n. 58 (citing Stone v. Stone, 824 So.2d 645, 647–48 (Miss.Ct.App.2002); Aron v. Aron, 832 So.2d 1257, 1258–59 (Miss.Ct.App.2002)).
Other cases have suggested that the valuation date can vary according to the assets. In other words, one asset could have one valuation date, and another a different valuation date.
So, is the rule any different when the case is remanded to the trial court for a do-over? Things can change in the lengthy time it takes to complete the appeal process, after all.
That’s what happened in Lewis v. Pagel, handed down by the MSSC on August 13, 2015. Following a trip through the COA, and from there to the MSSC, Drake Lewis and Tonia Pagel (formerly Lewis), found themselves back before the chancellor for a do-over on equitable distribution. The case was remanded for the chancellor to treat certain real properties as non-marital, to re-value a business, and to re-analyze equitable distribution. The chancellor followed the appellate courts’ instructions, using the asset values as of the date of the divorce.
Drake appealed, complaining that the chancellor’s approach skewed the ultimate outcome because values had changed in the time it took to complete the appeal cycle. Justice Chandler addressed his argument this way:
¶27. It is well-established that “an equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994). “[F]airness is the prevailing guideline in marital division.” Lowery v. Lowery, 25 So. 3d 274, 285 (Miss. 2009) (quoting Ferguson, 639 So. 2d at 929). Here, the chancellor’s division of the property was approximately equal. Drake’s argument that he received substantially less than Tonia relies on circumstances that occurred after the divorce judgment. However, the date for determination of equitable distribution is, at the earliest, the date of separation, or, at the latest, the date of divorce. Lowery, 25 So. 3d at 285. Additionally, an order of equitable division is a nonmodifiable judgment. East v. East, 493 So. 2d 927, 931 (Miss. 1986). Therefore, when the Court of Appeals remanded for the chancellor to revisit the equitable distribution, the chancellor properly redetermined the equitable distribution as of the divorce.
When you read the entire Lewis opinion (as I am sure you will), note that the chancellor did consider a post-appeal change in value that favored Drake. Legacy Holdings, LLC, a family business, was valued at the time of the divorce at $1,148,270, but the chancellor found that it had no value at the time of the remand hearing.
Here is a post about a case in which the chancellor’s use of the divorce trial date on remand was affirmed.
It would be a nifty skill for a lawyer to be able to tell the future. None of us in real life, however, has a crystal ball. Still, it’s a good idea to impress on your client that a side effect of an appeal could be that you can win the battle and lose the war. By the time the case descends from the lofty, rarified atmosphere of the appellate courts to ground level, things may have changed drastically in the meantime, resulting in a bounce that does not favor your client. In Lewis, the appeal on the equitable distribution saved Drake some rehabilitative alimony, but cost him $100,000 in lump-sum alimony. That’s going to leave a mark.
