March 12, 2012 § Leave a comment
Lane and Cristal Kimbrough appeared before a special chancellor to present their case for divorce. The case was apparently bifurcated, with the court hearing first only the divorce grounds, and the remaining issues to be tried later.
As for divorce grounds, Cristal charged Lane with habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed that Cristal had been guilty of habitual cruel and inhuman treatment and adultery.
At trial, after having heard the proof only on the grounds for divorce, the special chancellor dismissed all of the pled grounds and held that the parties were divorced “one from the other on the grounds of desertion.” The basis for his ruling was that both parties had recognized that the marriage was broken by virtue of having filed for divorce against each other, and they had in essence lived separate and apart within the same residence for more than two years, “abandoning the marital relationship.”
Both parties appealed.
In Kimbrough v. Kimbrough, decided by the COA February 28, 2012, the COA reversed and remanded, saying that “The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error.” Judge Russell, writing for the majority, stated:
“The Mississippi Supreme Court has held that a chancery court may not grant a divorce based on each party’s fault-based grounds. Hyer v. Hyer, 636 So. 2d 381, 383-84 (Miss. 1994). This Court has stated: “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983 (¶23) (Miss.App. 2000).
The court reversed and vacated the trial court’s judgment, declining to address any other issues.
Judge Griffis dissented for the reason that the COA should not have accepted and ruled on the appeal at all, since the trial court’s judgment disposed of less than all the issues pending (i.e., custody, child support, equitable distribution, etc.). He agreed that, if the COA should keep the appeal, the chancellor’s grant of a mutual divorce should be reversed, but he would have held that Cristal should have been granted a divorce based on the record.
Quite often lawyers present agreed Irreconcilable Differences divorce judgments granting both parties a divorce. That does not fly in the face of Hyer and Garriga because Irreconcilable Differences is not a fault-based ground.
In fault-based cases, however, the court can grant only one divorce per case. Mutual divorces are forbidden.
February 28, 2011 § 6 Comments
Mansfield and Patricia were married in 1994, when both were in their 40’s. It was the second marriage for each, and they had children by the previous marriages. Patricia suffered health problems during the marriage, and she received a Phen-Phen settlement in 2001.
On March 15, 2002, Patricia executed a will devising her entire estate to her three adult children and her sister. The will included this language: “Mansfield Langston, my husband, has his own estate in his name, therefore no provision for him is made in this will.”
Soon after in 2002, there was a series of transactions between the parties that ultimately resulted in a home being titled in joint ownership between Mansfield and Patricia, with right of survivorship. The home had formerly been in her sole name. There were other related transactions, the most significant of which was that a $200,000 CD was converted to joint tenancy with right of survivorship.
On May 11, 2005, Patricia died of a sudden illness, and Patricia’s estate was opened by her mother. The estate sought to set aside the joint tenancies in the marital home and the certificate of deposit in order to bring those assets into the estate for distribution to the will beneficiaries, who were Patricia’s adult children and Patricia’s sister.
Following the trial, the chancellor found that a confidential relationship existed between Mansfield and Patricia. Therefore, the chancellor ruled that the burden shifted to Mansfield to prove by clear and convincing evidence that the creation of the joint tenancies was not the result of undue influence. The chancellor held that Mansfield did not meet this burden, and both joint tenancies were set aside and brought into Patricia’s estate.
In the case of Estate of Langston, in a well-reasoned, authoritative opinion by Judge Griffis, the COA on March 30, 2010, reversed the chancellor and held that the presumption of undue influence did not apply to inter vivos transactions between husband and wife. The ruling in effect extended the prior rule that the presumption of undue influence did not apply to testamentary dispositions between spouses.
On February 24, 2011, the Mississippi Supreme Court affirmed the COA in the case of Estate of Langston v. Williams in an opinion authored by Justice Dickinson and joined by all but Graves, who has departed for his federal gig in New Orleans, that concludes with this key language:
“A confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift. And one who claims the gift was the product of undue influence bears the burden of proof.”
The burden of proof is by clear and convincing evidence.
The case was remanded to Sunflower County Chancery Court to allow the estate to make a record on the issue, since the chancellor had ruled (properly under the law in effect at the time) that such a presumption did exist, so that the estate was neither required to prove, nor was it given the opportunity to prove, undue influence.
It’s not uncommon for issues like these to surface in second marriages of older couples where there are children by a prior marriage. If you find yourself being presented with undue influence claims in a similar case, I encourage you to read Judge Griffis’s COA opinion. It’s about as good an exposition of all the applicable case law that you will find.