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.

Dispatches from the Farthest Outposts of Civilization

August 28, 2015 § Leave a comment

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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 § 1 Comment

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.

In a Summer Garden

August 21, 2015 § 3 Comments

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Reprise: The Two Types of Lawyers

August 20, 2015 § 1 Comment

Reprise replays posts from the past that you might find useful today.

The Two Types of Lawyers

July 31, 2014 § 3 Comments

There are as many ways to categorize lawyers as there are lawyers, I suppose.

Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.

Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.

The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.

A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.

When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.

When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.

When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

Double Dipping in Equitable Distribution

August 18, 2015 § 3 Comments

When Michael and Rosie Jackson went through their divorce, the chancellor awarded the former marital residence to Rosie and ordered that she pay the mortgage debt on it. The parties agreed that the value of the home was $78,000, and that its mortgage debt was $50,103, resulting in equity of $27,897.

When the chancellor toted up the assets, he assigned the equity to Rosie. Her share of the marital assets amounted to $31,928, and Michael’s share came to $120,310.64. The difference in favor of Michael was $88,382.64.

Then the chancellor allocated the marital debts between the parties. Michael was assigned $4,950 in credit card debt, reducing Michael’s asset value to $115,360. Rosie was assigned the mortgage debt, which the chancellor found to have reduced Rosie’s asset value to minus $18, 175. In order to equalize the estates based on that arithmetic, the chancellor awarded Rosie lump-sum alimony $57,680.32.

Before going any further, take a moment and ask yourself whether there is any flaw in that arrangement.

In Jackson v. Jackson, handed down by the MSSC on August 13, 2015, the court reversed in part and remanded because the chancellor counted the mortgage debt twice: once by subtracting it from the total value of the property; and a second time by including it in the debts assigned to Rosie. The result was that Rosie’s share of the marital estate was undervalued by $50,103, which in turn affected the amount of lump-sum alimony awarded. The case was sent back to the trial court for a re-do on that issue. All other issues were affirmed.

The COA had affirmed this decision and brushed aside Michael’s complaint about the calculation, noting that our law requires only that the division of the marital estate be equitable, not necessarily equal. The COA’s decision was the subject of a prior post here dealing with homosexual behavior as habitual cruel and inhuman treatment.

Judges do make mistakes when it comes to juggling those numbers in equitable distribution cases. Always check behind the judge for errors in handling debt such as was done here. While you’re at it, check arithmetic and make sure that the figures used match up with the evidence. File a timely R59 motion if you catch an error. Better to let the judge fix it, if she will, than to have to go to the expense of an appeal.

Love and the Family Jewels

August 17, 2015 § 3 Comments

Love, as they say, conquers all, including good judgment in some cases.

Most of us have seen this scenario more than once: Boyfriend, hopelessly in love with girlfriend, proposes marriage; Girlfriend, eyelids batting furiously, says “yes”; Boyfriend slips a rather expensive engagement ring on Girlfriend’s finger; wedding ensues, converting Boyfriend and Girlfriend to Husband and Wife; marital bliss soon gives way to combat; Husband retains attorney; Wife does the same. You represent Husband. Here is the conversation in your office:

H:  Oh, and not only do I not want her to get anything, but I want that engagement ring back.

You:  Under our law an engagement ring is a gift; the judge will not give it back to you.

H:  Oh yes he will because it belonged to my mother. It’s been in the family for 175 years. It was given to my great (etc., etc.) grandmother by Napoleon just after his victory at Austerlitz.

So let’s pause right there while you catch your breath. So it’s an heirloom. And a valuable antique, to boot. What to do?

Well, first off, you were right to point out that if it meets the elements of a valid gift, the judge is not going to take the ring away from her. Those elements are: (1) that the donor was competent to make a gift; (2) that the donation was a voluntary act and the donor had donative intent; (3) that the gift must be complete and not conditional; (4) that delivery was made; and (5) that the gift was irrevocable. In re Estate of Ladner, 909 So.2d 1051, 1053 (Miss. 2004). Those are fact issues, and the burden of proof is clear and convincing.

In a recent case the COA addressed a similar situation (not involving Napoleon). Here’s how Judge Barnes’ opinion laid out the dispute in Lomax v. Lomax, decided August 11, 2015:

¶11. The main point of contention in the divorce and the determination of marital property concerned the chancery court’s award of the engagement ring to Tara. The chancellor concluded that Tara was entitled to keep the ring, which had previously belonged to Max’s mother, since Max had given the ring to Tara as an inter vivos gift prior to the marriage. Max argues that the parties had an oral agreement that if the marriage did not work out, the ring would be returned to his mother. At the hearing, Max testified that his mother’s ring was given to Tara under the condition that once Max could afford another stone for the ring setting they had purchased, she would return the ring.

¶12. Tara, however, emphatically denied that there was an actual agreement that the ring would be returned, but she acknowledged that after the couple separated, she told her mother-in-law she wanted to be “fair” and return the stone. But she explained at the hearing that when she made that comment to Max’s mother, she “didn’t realize that [Max] intentionally wanted to cost [her] $20,000” to obtain the divorce.

The chancellor awarded Tara the ring. Judge Barnes addressed Max’s claim that the chancellor was in error by letting Tara keep the family jewels:

¶13. In Neville v. Neville, 734 So. 2d 352, 357 (¶19) (Miss. Ct. App. 1999), this Court held that since an engagement ring was a gift that predated the marriage of the parties, it “was not a marital asset subject to equitable division.” “It was, therefore, beyond the chancellor’s authority to order [the wife] to return possession of that item to [the husband] and [the chancellor’s] refusal to do so cannot constitute reversible error on appeal.” Id. Accordingly, we find no error in the chancellor’s decision to award the engagement ring to Tara.

In the Neville case, incidentally, Mr. Neville claimed that the ring was a family heirloom.

A few observations:

  • The ring does not just disappear from the marital equation. It is considered Tara’s separate property, and its value will be considered, along with her share of the equitable distribution, in determining whether she has a “deficit” that would justify alimony.
  • The fact that it was a family heirloom does not enter into the picture. If the giving of the ring meets all the requirements of a gift under Mississippi law, it belongs to the donee.
  • Max might have wanted to memorialize his version of the transaction with a pre-nup that provided that Tara would return the ring in the event of a marital dissolution, particularly if it had monumental value like the Napoleon ring mentioned above.
  • I think the outcome would have been different had Tara admitted on the witness stand that the ring was not a gift, but was hers temporarily only until Max could replace the valuable stone in it. The judge believed Tara that the ring was an unconditional gift, and that did in Max’s position. The chancellor is the ultimate determiner of whom to believe.
  • Would the outcome before the COA have been different if it were not only a family heirloom, but also a priceless antique with a provenance linked to one of the great figures in world history? We’ll have to wait until our appellate courts are confronted with such a fact situation. Until then, I think it’s safe to conclude that if the ring is gifted, it’s the property of the one to whom the gift is given — divorce or none.

 

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