Thursday, May 25, 2017

Guardian Ad Litem and Hearsay

Earlier today, the Mississippi Supreme Court issued a detailed opinion finding that a chancellor cannot use hearsay as evidence from a guardian ad litem report.  A link to the opinion is here.  I generally do not comment much on my own cases. I will say that if you practice family law, it needs to be read because it addresses a lot of legal issues and creates or clarifies some new law in certain areas.

U.S. Supreme Court Retirement Case

In Howell v. Howell decided on May 15, 2017, the U.S. Supreme Court unanimously handed a victory to Air Force veteran John Howell, who was divorced from his former wife, Sandra, over 25 years ago. Although the divorce decree had ordered John to share half of his retirement pay with Sandra, John later opted to waive part of that retirement pay (on which he pays taxes) to instead receive disability benefits (which are not taxable), thereby reducing the money that Sandra received. The justices today ruled that John cannot be required to reimburse Sandra for the $125 per month that she no longer gets as a result of his choice.  This has lots of real world consequences.  A link directly to the opinion is here.

Wednesday, May 24, 2017

Class Actions in Mississippi

The Mississippi Supreme Court is currently soliciting comments to allow Mississippi to amend Rule 23 of the Mississippi Rules of Civil Procedure to allow class actions in state court.  Currently, it appears Mississippi is the only state that does not have a class action rule currently.  A link to the proposed rule is here.

Friday, May 19, 2017

CLE - Olive Branch, Mississippi

I will be speaking at a CLE in Olive Branch, Mississippi of July 26.  More detailed information and topics is located here

Wednesday, May 17, 2017

Tax Exemption and Silence of Court Order

The child tax dependency can mean a great deal of income to a parent.  Additionally, unless one gets to claim the child as a dependent, that parent cannot write off any daycare expenses also.  What happens when a court order is silent as to who gets to claim the children then?  The IRS guidelines say whoever the child lived with the majority of the year gets to claim the minor child as a deduction.  As such, if the court order is silent, you have to defer to the IRS guidelines. 

Wednesday, May 10, 2017

Free Legal Research

Located here is a useful article on how to use Google Scholar to do legal research. 

Friday, May 5, 2017

Book of Interest

I came across Client Letters for Family Lawyers by Mark E. Sullivan a few days ago and ordered a copy.  A link to it is here.  Several of the forms are useful in advising clients of various issues without have to reinvent the wheel.  A number of the items will have to be tweaked to drop into a letter but give a good base to start with.  It is reasonably priced and essentially pays for itself with the first letter sent to a client.   

Tuesday, May 2, 2017

Adverse Possession Elements

Below is a good summary on the law of adverse possession. 

To establish title by adverse possession, each of the following six elements must be proven by clear and convincing evidence.  “For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.”  Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004)).  The claimant bears the burden of proving adverse possession by clear and convincing evidence.  Scott v. Anderson-Tully Co., 154 So. 3d 910, 916 (¶14) (Miss. Ct. App. 2015).  “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not
rise to the same level.”  Massey v. Lambert, 84 So. 3d 846, 848 (¶7) (Miss. Ct. App. 2012)
(citation omitted) (citing In re C.B., 547 So. 2d 1369, 1375 (Miss. 1990)). 

1. Under Claim of Ownership

 When determining whether an adverse possessor has staked a proper claim of ownership, the relevant inquiry is “whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.”  Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citing Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007)).  “Adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.”  Apperson, 950 So. 2d at 1117 (¶8).  As such, “the chancellor must look to the quality and not the quantity of the acts indicative of possession.”  Id.  “A party claiming land by adverse possession . . . enclos[ing] the piece of property with a fence is a factor to be considered in determining if adverse possession occurred.”  Buford v. Logue, 832 So. 2d 594, 602 (¶23) (Miss. Ct. App. 2002). 

2. Actual or Hostile

Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.”  Roberts, 118 So. 3d at 670 (¶10).  “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.”  Id. (citing Wicker v. Harvey, 937 So. 2d 983, 993-94 (¶34) (Miss. Ct. App. 2006)).  “[T]he adverse possessor . . . must present some proof that [his] occupation of the record owner’s property was hostile, and that the record owner—aware of the adverse possessor’s hostile occupation—took no action to prevent adverse possession.”  Double J Farmlands Inc. v. Paradise Baptist Church, 999 So. 2d 826, 829 (¶15) (Miss. 2008).  “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.”  Roberts, 118 So. 3d at 670 (¶10) (citing Apperson, 950 So. 2d at 1118 (¶12)). 

 3. Open, Notorious, and Visible

“In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible.”  Roberts, 118 So. 3d at 671  (¶13).  Therefore, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”  Id. (quoting Wicker, 937 So. 2d at 994 (¶35)).  “A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.”  Dean v. Slade, 63 So. 3d 1230, 1237 (¶28) (Miss. Ct. App. 2010).   

4. Continuous and Uninterrupted for a Period of Ten Years

Mississippi Code Annotated section 15-1-13 requires continuous and uninterrupted possession of a disputed property for at least ten years.  See Miss. Code Ann. § 15-1-13. “[O]ccasional use of someone else’s property without an enclosure does not pass the test of adverse possession.  Ellison v. Meek, 820 So. 2d 730, 736 (¶21) (Miss. Ct. App. 2002).  “Sporadic use of another’s property does not constitute open and notorious possession.”  Id.

5. Exclusive

 “Exclusive possession means that the possessor ‘evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.’”  Roberts, 118 So. 3d at 671 (¶15) (quoting Wicker, 937 So. 2d at 995 (¶40)).  “It does not mean that no one else can use the property.”  Id.  “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”  Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). 

6. Peaceful

“An adverse possessor’s use of a claimed property must be peaceful.”  Scott, 154 So. 3d at 915 (¶28); see also Miss. Code Ann. § 15-1-13.  This Court has held that “expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful.”  Roberts, 118 So. 3d at 671 (¶16).