Decisions – Miss.S.Ct. – Dec. 12, 2015

Michael James Brown v. State –  embezzlement from guardianship – Brown was the attorney for the guardianship of DeMon McClinton (McClinton is the grandson of Aaron Henry) and embezzled some 1.2 million of the money over a six-year period.  The Court affirms the conviction and sentence but vacates and remands on the restitution.  The Court ordered restitution of 1..2 million but, by statute, restitution may not be greater than the amount alleged to have been stolen.   Here the indictment charged that Brown embezzled $550,000.

It is obvious in this case that pecuniary damages in the amount of $550,000 resulted from those convicted crimes. However, no proof was offered that any more than the $550,000 in pecuniary damages resulted from the offenses of conviction.  The transcript indicates that the State requested at least $550,000 in restitution be ordered, and merely mentioned that the chancery court ordered Brown to repay $1.2 million. The $1.2 million ordered repaid by the chancery court reflected money used for cars, cash, and many other expenditures that certainly did not result from the specific embezzlement of the $550,000.

Matthew Burnham v Dana Burnham – division of property  – the Court grants rehearing and this time affirms the chancellor’s ruling. Mathew and Dana were divorced.  Dana was awarded some $283,000 in marital assets, primary physical custody of the two children, and $600 a month in child support.  Matthew appealed arguing that the court erred in the amount of assets and child support it awarded and that it also erred in dismissing his supersedeas bond.  The court based the child support on Mathews’ income of $2600 per month but also found that he receives additional income from farming. However, there was no documentation of this additional income or evidence that he still receives it.  In its first decision, the  court reversed the child support award because it was more than 20% of Matthews’ income and there was no basis in the evidence to deviate from the statutory presumptions.  The court also reversed the division of marital assets finding that the chancellor allocated too much debt to Matthew and failed to take into account that while Dana had a job making $11 an hour, she had a college degree and could make more than that.

On  rehearing, the COA affirms.  “We find that substantial evidence supports the chancellor’s finding that Matthew could earn, and had earned, more than he claimed to be making, and that the property division, though unequal, was within the chancellor’s discretion because it was calculated to eliminate the need for alimony.”

The Miss.S.Ct. granted cert. and affirms the award of child support. “But because the chancellor’s property distribution rested on several factual findings unsupported by the evidence at trial, we reverse and remand for a new property distribution.”

Kayla Vaughn v. PERS –  PERS beneficiaries –  Marjorie Kahn was a state employee. In 1999, she applied for disability retirement and  was given a choice of payment options. She chose the option whereby she would receive “[a] reduced retirement allowance”throughout her life in exchange for “the further guarantee of payment to the named beneficiary, beneficiaries, or to the estate, for a specified number of years certain.”   Marjorie named her daughter Heather Vaughn.  She died not too long after.   PERS began making monthly payments to Heather in the amount of $922.63, guaranteeing these monthly payments for twenty years, through October 2019.

Six months after Marjorie’s death, the Legislature amended the law so that Option 4-B directed PERS, in the event “the retired member or the last designated beneficiary both die before receiving all guaranteed payments due,” to pay “the
actuarial equivalent of the remaining payments . . . under [the newly created] Section
25-11-117.1(1)[.]”   In 2011, Heather died.

Traveling under revised Option 4-B, PERS calculated the actuarial equivalent of the more than eight years of remaining guaranteed payments to be $110,163. PERS then looked to section 25-11-117.1(1), which, according to PERS, directed it to pay the remaining money to Marjorie’s statutory successors. So 1(a) The surviving spouse of the member or retiree;
(b) The children of the member or retiree or their descendants, per stirpes; (c) The brothers and sisters of the member or retiree or their descendants, per stirpes; (d) The parents of the member or retiree; (e) The executor or administrator on behalf of the member or retiree’s estate; (f) The persons entitled by law to distribution of the member or retiree’s estate. PERS contacted Marjorie’s family to determine which of Marjorie’s surviving family members were entitled to this payment.

PERS also contacted Heather’s family, informing them that, based on subsection (2) of section 25-11-117.1, they were entitled to a prorated cost-of-living adjustment for the portion of the 2011-2012 fiscal year when Heather was still alive and received monthly payments. See Miss. Code Ann. § 25-11-117.1(2).

Heather’s half-sister, Kayla Vaughn, objected to PERS distributing the actuarial equivalent of the remaining payments to Marjorie’s statutory successors. Kayla argued that even though she is not related to Marjorie, PERS should give her the remainder of Marjorie’s retirement benefits. The Ct of Appeals affirms agreeing with PERS interpretation of the statute.

The Miss.S.Ct. granted cert. and affirms. “While PERS, the Hinds County Circuit Court, and the Court of Appeals erred by applying the current versions of the PERS statutes, rather than the version in force when the retiree made her elections, we ultimately find that such error was harmless, and thus affirm the judgments of each of these entities in result only.”

Cert grant:

Warren v. Statedeficient indictment –  Warren was convicted of bringing contraband (xanax and lortab) into the Winston-Choctaw Regional Correctional Facility in Louisville, Mississippi.  She appeals arguing that the indictment was defective because it charged her with bringing in contraband but failed to identify the contraband. The COA reversed finding that  the indictment failed to specify the nature of the controlled substance that Warren was alleged to have possessed. “Although our caselaw on this issue primarily addresses possession and trafficking of controlled substances pursuant to Mississippi Code Annotated section 41-29-139 (Supp. 2014), we see no reason why this same reasoning should not extend to possession of a controlled substance in a correctional facility pursuant to section 47-5-198”  The State filed for cert. which the Court granted.(The opinion linked to is the COA opinion).

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