Friday, August 30, 2013


Yesterday I talked about sanctions including dismissal for providing misleading answers.  If you want to see how fast things can go south for failing to answer discovery correctly, see City of Jackson v. Rhaly, et. al. located here.  Here, the Court of Appeals affirmed the granting of a default judgment against the City of Jackson for failing to answer an interrogatory correctly.  Something to think about when a client wants to be sloppy in answering interrogatories. 

Thursday, August 29, 2013

Dismissal as a Sanction

Dismissal of a case is a harsh sanction for a case.  It is provided for by the Rules and the caselaw.  Rule 37(b)(2)(C) states, in pertinent part: If a party . . . fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

". . . . an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]" (Emphasis added).
The Mississippi Supreme Court has established the following factors for evaluating the appropriateness of dismissal as a sanction for discovery violations.  First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.  Pierce, 688 So.2d at 1389; see M.R.C.P. 37(b)(2)(C). The Pierce court explained that these factors are considerations and not four absolute requirements. Pierce, 688 So.2d at 1389. The supreme court has further held that willfulness or bad faith may be so clearly evidenced that the four Pierce factors will be irrelevant to the upholding of dismissal. White v. White, 509 So.2d 205, 207 (Miss. 1987).  Additionally, "[a] finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations." Pierce, 688 So.2d at 1390.   Rule 37(e) provides for additional sanctions where a party abuses the discovery process in seeking or resisting discovery.   If a party is untruthful as to her discovery, Rule 37(e) also supports a trial court's dismissal. See also William Pyle, Luther Ott & Clark Rumfelt, Mississippi Rules of Discovery, 46 Miss. L.J. 681, 764-83 (1975).

However,"[d]ismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice." Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (¶36) (Miss. 1999). Further, where "a party has frustrated the orderly judicial process by false or erroneous responses to interrogatories, that party should not be able to argue that its own conduct has removed it beyond the reach of sanctions." Pierce, 688 So.2d at 1390; Smith v. Tougaloo Coll., 805 So.2d 633, 642 (¶33) (Miss. Ct. App. 2002).

On at least once occasion, I have been able to have a party's pending claims dismissed with prejudice on the eve of trial for failure to provide discovery responses along with extremely misleading information in discovery.   This is something to keep in the back of your mind as an attorney and additionally as a party. 

Wednesday, August 28, 2013


For some reason, lots of people think that once a child gets a certain age they can choose not to visit the other parent.  The answer like most things is a definite maybe.  The central issue seems to resolve around whether the other parent is withholding visitation or interfering with visitation as opposed to the child will just not go.  Take  a look at Bowen v. Bowen, 107 So.3d 166 (Miss. App. 2012).  A copy is located here.  From my reading of the opinion, it is not contempt as long as the parent is playing no part in not allowing the child to go while not discouraging the child from going.  This is a tricky area and extremely fact specific.  Lots of time an expert may be helpful to determine if there is a parental alienation issue or if the child just really does not like the other parent for whatever reason justified or not.    

Tuesday, August 27, 2013

Guardian Ad Litem

In Mississippi, there are two situations when the Court can appoint a guardian ad litem.  Where there are sworn accusations abuse and/or neglect, the appointment of a Guardian Ad Litem is mandatory pursuant to Mississippi Code Annotated §93-11-65 and which the failure to appoint a guardian ad litem under the circumstances constitutes reversible error.  See In re Adoption of E.M.C., 695 So.2d 576, 581 (Miss. 1997).  ( The failure to appoint a guardian ad litem under a mandatory statute requires reversal.)  Chancellors are the “superior guardians” of minor children in the State of Mississippi. See In the Matter of the Adoption of D.N.T., 843 So. 2d 690, 713 (Miss. 2003). Additionally, “The chancery courts are guardians ‘ of all minor children’ in their districts and may appoint guardians ad litem as needed.” Adams v. Adams, 467 So. 2d 211, 216 (Miss. 1985). 

As seen above, there are situations where the Court has no discretion on whether to appoint a guardian ad litem and situations where the Court may appoint a guardian ad litem.  I have and continue to serve as a guardian ad litem on a number of cases which allows me to look at a case from multiple viewpoints.

Here is your deep legal thought of the day based on the caselaw above.  Say the Court fails to appoint a guardian ad litem on a case where the appointment is mandatory and the appeal period runs.  Does the failure to appoint the guardian ad litem render the prior judgment void?  There appears to be no caselaw on point but appears to be an argument that the appointment of a guardian ad litem is a substantive right in these cases which is typically not waivable.  Some food for thought. 

Monday, August 26, 2013

Alternative Visitation

Lots of times, people get stuck in the idea that visitation has to be set up certain ways.  The law is pretty clear in Mississippi.  "Visitation is a matter within the chancellor's sound discretion." Brooks v. Brooks, 76 So.3d 215, 222 (¶31) (Miss. Ct. App. 2011). "The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor's visitation decision is afforded great deference by this Court." Id. Our supreme court has emphasized the importance of a non-custodial parent's visitation rights:

Certainly the rights and responsibilities of the parent having custody following a divorce are paramount with respect to matters of schooling, discipline[,] and the like. We are afraid that by labeling the rights of the non-custodial parent "visitation" we imply an inordinate subordination of those rights in quality. That there will be no misunderstanding in the future[,] the chancellor should approach the fixing of visitation rights with the thought in mind that, absent extraordinary circumstances militating to the contrary, the non-custodial parent will[,] during the periods of visitation[,] have broad authority and discretion with respect to the place and manner of the exercise of same, subject only to the time constrictions found reasonable and placed in the decree. Overnight visitation with the non-custodial parent is the rule, not the exception; indeed, a non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the children. The approach we mandate is based upon the premise of our law in this area: that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship. To be sure, this ideal is seldom achieved. This, however, is no reason for the law to impose obstacles to that achievement.

Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986) (internal citation omitted).

The Mississippi Court of Appeals has held that "liberal visitation, at a minimum, means two weekends a month and five weeks during the summer." Messer v. Messer, 850 So.2d 161, 167 (¶22) (Miss. Ct. App. 2003) (citing Chalk v. Lentz, 744 So.2d 789, 792 (¶9) (Miss. Ct. App. 1999)). 
From reading the cases, there is no truly standard visitation.  Visitation is what the chancellor says within certain parameters.   Sometimes you have to think outside the box.  I have been looking at what is called 5-2-2-5 visitation from several states out west.  This parenting schedule is where the child is with Parent A every Monday and Tuesday (2 days) and Parent B every Wednesday and Thursday (2 days). The weekends from Friday through Sunday would be alternated (3 days) between the parents. The child will be with the parent whose weekend it is for 5 days and the other parent 2 days. Because the weekend time alternates from week to week, the child would end up spending 50% time with both parents.  Thus it gets the name 5-2-2-5.  I may start experimenting some with this schedule as it has been successful in a number of states even in high conflict cases.  In several states, the law is starting to change and the automatic presumption is that joint custody is in the child's best interest and the burden is on the other party to show that it is not.  At some point, I expect this to be the law in Mississippi. 


Friday, August 23, 2013

Little Known Aspect of Rule 81 - Part 2

This is the second post regarding one other little known aspect of Rule 81 of the Mississippi Rules of Civil Procedure.  Rule 81(d)(6) provides as follows:

"(6) Rule 5(b) notice shall be sufficient as to any temporary hearing in a pending divorce, separate maintenance, custody or support action provided the defendant has been summoned to answer the original complaint."

I had always been under the impression that a Rule 81 was always necessary for a temporary hearing in a divorce action.  From a practical standpoint, there is no reason not to issue a Rule 81 with the complaint.  However, under some circumstances especially where the parties are having ongoing negotiations in good faith, this might be of practical use where there is no need for immediate temporary relief.  To me the rule is a little strange in this area.  From my reading, it appears the Plaintiff could use Rule 5 notice once the Defendant is served but the opposite (i.e. Defendant serving  Plaintiff with Rule 5 notice) would not be sufficient as they were not served a summons. 

Thursday, August 22, 2013

Little Known Aspect of Rule 81 - Part 1

I was reading Rule 81 of the Mississippi Rules of Civil Procedure last night on a case and noticed something I had not thought of before.  Rule 81(d) 4 of the Mississippi Rules of Civil Procedure provides that:  

"(4) No answer shall be required in any action or matter enumerated in subparagraphs (1) and (2) above but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues. A party who fails to file an answer after being required so to do shall not be permitted to present evidence on his behalf. "  (emphasis added).

The last sentence to me is interesting and might be useful to use when a party is asking for a continuance just to buy time particularly on contempt issues.  An idea would be that as part of the order of continuance require that an answer of some form be filed with the Court.   If none is filed, they can put on no evidence under the rule. 

Wednesday, August 21, 2013

Tenants and Foreclosure

I keep having the issue of what rights tenants have when a property is foreclosed come up in several of my cases as a side issue.  Here is a little info that may be of help.  The Protecting Tenants at Foreclosure Act of 2009 is a federal law that allows renters to remain in a foreclosed building for the duration of their lease. Tenants who have a month-to-month lease or who are under an oral agreement -- so-called tenants at will -- can stay at least 90 days from the date they receive a written eviction notice. Because this is a federal law, it applies to renters in every state, city and town. The only exception is if the new owner plans to live in the unit himself before the lease or the 90-day period expires.   In that case the buyer may terminate a lease with 90 days' notice. Importantly, the law provides that any state legislation that is more generous to tenants will not be preempted by the federal law. These protections apply to Section 8 tenants, too. 

Tuesday, August 20, 2013

Causation and Lost Chance of Recovery

In a majority of the litigation I have had recently, most personal injury defense attorney's are not necessarily challenging liability on their clients but challenging causation of the injuries (i.e. we messed up, but they were hurt anyway).  This is a typical defense on birth injury cases and medical malpractice cases in particular.  This is a tricky area where expert testimony needs to be abundantly clear.  In Ladner v. Campbell, 515 So.2d 882,889 (Miss. 1987), the Mississippi Supreme Court held that a plaintiff must show that with proper treatment, the plaintiff would have provided with a greater than fifty percent chance of a better result than was in fact obtained.  As such, this information needs to be in the expert designations.  Without it, I have seen medical malpractice cases dismissed on this basis because there is no expert proof on causation in this regard which is a necessary element of the case.   

Monday, August 19, 2013

5th Amendment as a Bar to Prosecuting Complaint

Adultery is still illegal in Mississippi.  In light of Lawrence v. Texas handed down by the U.S. Supreme Court a few years back, it is extremely doubtful that the statute is constitutional.  Regardless, I still see attorney's regularly advising their clients to assert the 5th amendment on adultery issues.  Mississippi has a long line of cases that allows the Court to take an adverse inference from taking the 5th.  The flip side is, I believe that the party asserting the 5th should be barred from pursuing a complaint or counter-claim for divorce.  Mississippi has virtually no caselaw on this but several other jurisdictions do.  However here is a little Mississippi analysis below with some analysis from other jurisdictions.

A party who files a divorce action waives certain rights and puts their conduct and behavior in question.  Just as in Rule 503 of the Mississippi Rules of Evidence, if a party puts their physical health in issue, the medical privilege is waived.  As such by filing a divorce complaint or counterclaim, the party is waiving certain privileges.   

 Additionally under the legal standards for child custody (Albright v. Albright), alimony factors (Armstrong v. Armstrong), and property division (Ferguson v. Ferguson), martial fault and/or moral fitness are factors that are required to be considered by the Court.   The clean hands doctrine has long been recognized by our Courts. 

“…he who comes into an equity court must come with clean hands.  One cannot use the process of that court when his conduct with respect to the transaction in question as been characterized by willful inequity, illegality, and fraud.  Griffith, Miss. Chancery Practice, (2d. ed. 1950), Section 32, 42).”

A party  cannot be granted relief when refusing to be truthful about the same.  While there is not Mississippi case on point, in the Missouri case of Franklin v. Franklin, 283 SW2d 483 (Mo. 1955), the Missouri Court held that a spouse certainly has a right not to answer questions regarding adultery, however by refusing to answer the same, it is justifiable to strike their pleadings.  Additionally, in a Washington Court case, Annest v. Annest, 298 P.2d 483 (Wash. 1956), the Court found that where a party refuses to answer questions regarding their adulterous relationship by asserting their 5th amendment privilege, it is proper to strike their entire testimony.  

This seems to be the view adopted by the majority of jurisdictions.   If a spouse invokes a fifth amendment privilege regarding questions about adultery, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against her regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose noncriminal sanctions on the husband who invoked his fifth amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972).  The rationale for this rule was explained in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated:

“Although a party has the right to take the Fifth Amendment against self-incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. . . . Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information.”

Id. at 385; accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings, the courts have, in the interest of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort).
Hope this gives you some food for thought. 

Friday, August 16, 2013

Divorce Decree Checklist

I have talked about previously on here all the things that can go wrong with a divorce decree regarding failure to do factor analysis on the record, attorney's fee problems, and failure to have a valid consent on file.  Based on that, I have created a checklist I hope will help both chancellors and attorneys located here.  This checklist is part of my form book I have been working on.  I met my deadline and have it completed.  Currently, I am in the process of going back through and doing some editing.  Additionally, I am adding some more stuff as issues develop on current cases I am handling, I am adding new forms that may be of interest.  I am hoping to have it finalized in a few months depending on my trial schedules. 

Thursday, August 15, 2013

Criminal Burden of Proof

Lots of times in doing any kind of family law case, you end up having to defend a party charged with domestic violence.  Sometimes it happened, sometimes it did not.  Lots of times an abuser will try to say that one party is alleging it to cover up an affair.  Regardless, here is a link to a document dealing with the criminal burden of proof.    I have a full blown up exhibit of this at my house.  It can be useful in defending these type of cases. 

Wednesday, August 14, 2013

Cases of Interest

The Mississippi Court of Appeals handed down two cases of interest yesterday.  The first is Reno v. Reno located here.  This case has an interesting issue.  Both parties agreed to a divorce on irreconcilable differences and testified on the record to the same.  Problem is they never put the same in writing as required by the statute.  The Court of Appeals found the divorce was void for failure to comply with the statute.  As such, two years after the fact, the parties are legally now still married.  If either of them have remarried, there is a whole other can of worms waiting to happen. 

The Court of Appeals also decided Pelton v. Pelton located here.  The main issue on this case was that the chancellor made no findings of fact under the Armstrong factors nor the Ferguson factors as required under the caselaw.  The chancellor merely announced what the judgment was.  I previously talked about that here.  As such, the entire case was sent back.  From a practical standpoint, the court on remand can make the identical ruling with an analysis on the record and probably be affirmed.       

Tuesday, August 13, 2013

Book Review and Depositions

I finished reading Advanced Depositions Strategy & Practice early this morning.  It can be purchased from Trial Guides here.   The book has some good ideas in it and discusses techniques for dealing with an evasive witness along with how to use Reptile Methods in personal injury cases.  If you are not familiar with Reptile methods in the trial of cases you need to take a look at some of Don Keenan's writing on it.  One area of the book that is very interesting is the CD that comes with it has a whole research file on deposition conduct of opposing attorneys.  The most interesting issue deal with the possibility of sanctions for an attorney insisting on a party taking a "break" during depositions prior to answering a question.  There appears to be authority that this may waive attorney-client privilege on anything that is said during that time.  It is an interesting issue to look into and I believe Mississippi would follow the same logic of other court that have considered the issue.  The book is definitely worth a read.  

Monday, August 12, 2013

Equitable Offset

Mississippi has several cases dealing with equitable offset.  All equitable offset does is create a situation where a party should fairly be given credit for certain things.  For example, a father was properly given credit  against arrearages for a child that he paid money directly to in college.  Evans v. Evans, 994 So. 2d 765, 772-73 (Miss. 2008).  This can be used an an interesting tool to resolve cases involving alimony and child support too.  The parties can agree that for example the amount of child support one parent would have to pay be offset a certain amount of alimony one party needs to pay.  If this is done, the amounts need to be specified though.  If you don't, at some point one party is going to file for modification and there is no way see what the offset should be.

Friday, August 9, 2013

Expert Designations

The Supreme Court yesterday reversed and rendered another judgment for failing to properly disclose expert opinions.  The case was Cleveland, et. al v. Hamil, et. al.  located here.   The jury had originally awarded the Plaintiff a judgment for over a million dollars.  I previously discussed expert designations here.  This cases reaffirms my paranoia on expert disclosures.  As I previously talked about, every single basis of the opinion needs to be in the disclosure.  In light of this case, you almost have to do a dry run of your testimony with the expert, transcribe it, and then put it in a designation.  I predict the next hot topic will be whether or not a treating physician is an expert and what all has to be disclosed regarding their opinion as to whether they must be designated as an expert.

Thursday, August 8, 2013

Attorney's Fees on Paternity

On March 12, 2013, the Court of Appeals handed down Solangi v. Croney.  The quick facts of the case are that it was a paternity and custody case filed by the natural father.  The trial awarded almost $14,000.00 in attorney's fees to Ms. Croney.  The trial court based this largely on Mississippi Code Annotated 93-9-45. Mr. Solangi appealed.   The Court of Appeals reversed and rendered the award of attorney's fees.  The Court found that since Mr. Solangi brought the suit, Ms. Croney was not entitled to attorney's fees under the statute on the paternity portion of her claim and further that she showed no other basis to award attorney's fees on the custody portion of the claim.  I previously talked about attorney's fee here.  To me, 93-9-45 looks ripe for an equal protection challenge regardless.  Is there any reason a man could not obtain attorney's fees if he files for paternity to prove he is the father?  If a man cannot recover attorney's fees under the statute for having to bring the action, looks like a violation of equal protection based on gender to me.     

Wednesday, August 7, 2013

Apps of Interest

Got a few apps of interest for Android users.  They are great for a divorce and personal injury practice. There best part is they are free.  Check out the following:

(1)  Google Earth - Great for getting accident scenes and also viewing neighborhood 
(2)  TimeClock Free - keeps up with billable time by client with stopwatch
(3)  Zillow - great for ballpark appraisal price on a house
(4)  Dictadroid Lite - great for dictate and also has an email feature on it.  The recordings on it are actually clearer than the dictation equipment at my office.

Tuesday, August 6, 2013

Taxes and Divorce

I don't claim to know much about taxes and divorce.  I always advise my clients that any tax issues need to be reviewed by an accountant prior to divorce.  It is a good idea to put a disclaimer in the property settlement concerning whether the client has been advised of the tax consequences by you as the attorney.  Nevertheless, here are a few things that are pretty basic clients and attorneys need to be aware of:

(1)   If children are involved, who gets to claim the deduction needs to be addressed in the divorce decree.  A useful article explaining this is located here.  If the issue is being litigated, the parties need to put on some proof under Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000).  Those factors are 1. The value of the exemption at the marginal rate of each parent; 2. The income of each parent; 3. The age of the children and how long the exemption will be available; 4. The percentage of the cost of supporting the children borne by each parent; and 5. The financial burden assumed by each parent under the property settlement agreement in the case. 6. Value of non-economic but valuable contributions by custodial parent - Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001).   If no proof is put on, whoever gets custody gets the deduction by default under IRS regs.

(2)  In order for the parties to file a joint return, the parties must be married through the end of the year.  IRC 6013(a) and 7703(a)(1).  Rough translation, you divorce on December 31, cannot file joint return.  

(3)  Alimony is deductible by the payor and income to the payee.  The parties may specifically agree in the property settlement that it is nontaxable to the payee.  Here is a that has some helpful information on that.  Also, for it 

(4)  A divorced spouse may seek innocent spouse relief under IRC 6013.  

There are all kinds of little issues that especially with high income individuals a CPA needs to review.  

Monday, August 5, 2013

Final Judgment

I previously talked about some language to add to a final judgment here.  Based on several recent appellate opinions, you may wish to add a Rule 54(b).  Almost weekly now, the Court of Appeals has been dismissing appeals saying that several of them are not adjudicating all of the issues in a case or alternatively that the Court did not certify the judgment as final as to the issues presented pursuant to Rule 54.  I think it is a good idea to add language certifying that the order entered is a final judgment as to all issues pursuant to Rule 54(b) or alternatively that it is a final judgment as to the issues presented with the whatever issues are remaining listed out.  This can save a lot of time and money along with getting the appeal period running on those issues.

Friday, August 2, 2013

Darby Affidavit

I am attaching a form here that may help save your client a lot of cash.  In Estate of Darby v. Medicaid located here, the Court of Appeals in Mississippi with the Mississippi Supreme Court denying certiorari held that a child or grandchild is entitled to a continuing homestead exemption in the homestead of a deceased free from any creditor's claim including Medicaid.  Lots of older clients end up in a nursing home with Medicaid footing the bill.  This can easily add up to hundreds of thousands of dollars.  With this case, the family may be able to keep the deceased's home as long as it was homesteaded at the time of death.   From a practical standpoint, the deceased's home is many times the only estate asset.  Sending the form attached to Mississippi Medicaid with proper documentation can greatly assist a family in having at least something from a deceased's estate. 

Thursday, August 1, 2013

Inherited Property

On Tuesday, the Mississippi Court of Appeals handed down Renfro v. Renfro located here.  The main issue in the appeal was whether Ms. Renfro's inherited land became marital property by family use and the planting of various tree on it during the marriage by the Husband.  The Court of Appeals said no and reversed the trial court.  To me the language in paragraph 18 that is in bold is useful to put in a folder somewhere.

"¶17. As acknowledged, nonmarital assets may lose their status as such if the party
 commingles the asset with marital property or uses the assets for the benefit of the family.  Johnson, 650 So. 2d at 1286. However, Claudia testified that she and Johnny never used the  land for any family purposes. Significant to our analysis, we recognize that in the recent and  similar case of Marter v. Marter, 95 So. 3d 733, 737-38 (¶¶14-16) (Miss. Ct. App. 2012), this  Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to  marital property by virtue of commingling.

¶18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital
 property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose  for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005).  The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2]. Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion."

Looks to me like both sides had some good arguments.  The big issue here is the equity of the situation and the inadequate proof of contribution or conversion by family use.  Some of the language in the opinion dealing with tracing is also helpful.