Wednesday, July 18, 2018

Conservatorship to Probate

Most attorney's are not aware that a conservatorship is to be converted to a probate once the ward dies if there is no will.  Mississippi Code Annotated 91-7-68 provides that:

"Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent's estate in the manner required by law. Such fiduciary's bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting."

Saturday, July 14, 2018

Habitual Drunkenness

Mississippi still has the divorce ground of habitual drunkenness.  “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).   In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.  Question I have is what proof is needed that the drinking continues?  What happens if they just don't drink at trial and then start drinking there?

Sunday, July 1, 2018

Marital Fault

I came across this in an opinion and found it helpful in determining when fault should be considered by the trial court.  Marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship." Bond v. Bond, 69 So. 3d 771, 773 (¶6) (Miss. 2011) (citing Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)). Where the only evidence of adultery occurred after the couple's separation; it is not error in refusing to give weight to this factor as there was no evidence that it harmed the marital relationship.

Tuesday, June 19, 2018

Contractual Changes to Child Support

The Mississippi Court of Appeals decided Campbell vs. Campbell today located here.  The general facts were that the father was extremely high income and the parties signed a property settlement agreement that had a per child support order. (i.e. $1,250.00 per child).   The Father was also paying way below the child support guidelines.  The Court of Appeals reversed the chancellor raising the child support to the guideline amounts as the parties had contemplated emancipation of the children on a per child basis.  As such, the trial court could not modify the support to increase it since the emancipating was contemplated by the agreement.  My reading of this case also is that the parties can agree to pay less than the statutory amounts of child support as part of a package divorce deal. 

The child support provision is as follows:    "The Husband agrees to pay to the Wife as child support the sum of $1,250 per month per child, beginning June 1, 2010 and continuing on the first day of each month thereafter until said children attain the age of 21, marry, join the armed services or are otherwise fully emancipated according to law, whichever occurs first. The parties acknowledge and agree that the Husband's current monthly gross income is $66,666.67."

Tuesday, June 12, 2018

Save the Date

I'll be speaking at a CLE next month on Advanced Trial Techniques on July 27, 2018 in Southaven.  A link to the information is here

Thursday, May 31, 2018

Changing Gender on Birth Certificate in Mississippi

Mississippi will issue an amended birth certificate upon receipt of "a certified court order, a medical statement that attests to the reassignment, and the required fee." Miss. Admin. Code 15-5-85:3.21. Mississippi Vital Records will issue an amended birth certificate with the legally updated name and sex as a "marginal notation", meaning the birth certificate will show both names and both genders. To apply for an updated birth certificate the applicant should submit the court ordered name change, the court ordered gender change, the medical statement and the applicable fee to Mississippi Vital Records, 222 Marketridge Dr. Ridgeland, MS 39157. 

Friday, May 25, 2018

Discovery and Experts

What happens if you do not do discovery of expert witnesses in a case?   Mississippi Rule of Civil Procedure 26 is to be strictly interpreted and should be rigidly enforced. Hudson v. Parvin, 582 So.2d 403, 412‑13 (Miss.1991).   M.R.C.P.  26(b)(4)(A)(i) states, “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial.”  When requested, parties must disclose the opinions of expert witnesses and the underlying grounds of opinions.” Peterson v. Ladner,785 So.2d 290 (Miss. Ct.App. 2000).  (Emphasis added).  The 60 day notice mandated in Uniform Chancery Rule 1.10  does not apply unless opposing counsel makes a discovery request to designate experts.   Jackson v. Perry, 764 So.2d 373, 384 (Miss. 2000).   As such, you can get blindsided by experts and other people by failing to conduct written discovery.