242 So. 3d 167
Miss. Ct. App.2017Background
- Louis Labasse Jr. died June 11, 2014, survived by wife Ruby and daughters Wendy Chester and Pamela Ortis from a prior marriage.
- Wendy probated an instrument as Louis’s will and was appointed executor; the will gave Ruby a life estate in the homestead and daughters the remainder.
- Within 90 days after probate, Ruby renounced the will and filed a spousal-share election; she later filed multiple petitions including a will contest, widow’s allowance, and petition to establish homestead possession.
- The chancery court found Wendy (as executor) removed property and withdrew funds using power of attorney, ordered return of property, awarded Ruby a one-third spousal share, and entered contempt-related relief when Wendy failed to comply with court orders.
- Wendy appealed several rulings (including consideration of the will contest, final accounting/closing, the one-third award, contempt ruling, and attorney’s fees). The Court of Appeals affirmed and dismissed Pamela as an appellant because she was not a trial-level party.
Issues
| Issue | Plaintiff's Argument (Wendy) | Defendant's Argument (Ruby) | Held |
|---|---|---|---|
| Whether Pamela should be dismissed as an appellant | Pamela can appeal with Wendy | Pamela was never a party below and thus cannot appeal | Dismissed Pamela as appellant (only parties below may appeal) |
| Whether chancery court erred by considering Ruby’s petition to contest the will | Court improperly considered will contest without joining heirs (Pamela) | Ruby withdrew the contest; court dismissed it without prejudice | No error; petition was withdrawn and never adjudicated |
| Whether court erred in ruling on final accounting and closing of estate | Final accounting/petition were unsigned by Wendy, lacked sworn lists, and heirs/creditors not served | Wendy failed to timely file accounting; estate attorney filed documents after delays; Wendy induced or invited error by noncompliance | No error; Wendy waived objections by failing to comply and failing to timely object to procedure |
| Whether awarding Ruby one-third spousal share was error | Award improper after probate of will | Ruby timely renounced and properly elected spousal share under statute | No error; statutory spousal-share election entitles surviving spouse to one-third where two children survive |
| Whether contempt proceeding violated Wendy’s due process and whether she was entitled to relief | Service in contempt action defective; no hearing/minutes; due-process violation | Parties treated matter as joint/requested consideration; Wendy (via estate attorney) defended merits and waived service objection | Service defective but Wendy waived objection by appearing/defending and signing agreed orders; contempt ruling and related fees upheld |
| Whether attorney’s fees on appeal should be awarded to Ruby | Wendy’s appeal is frivolous and fees warranted | Fees requested based on alleged frivolous appeal | Denied — appeal not frivolous; Ruby cited no controlling appellate authority to justify fees on appeal |
Key Cases Cited
- Turnage v. Brooks, 213 So. 3d 103 (Miss. Ct. App. 2016) (standard for appellate review of chancellor’s factual findings)
- Joel v. Joel, 43 So. 3d 424 (Miss. 2010) (appellate deference where substantial evidence supports findings)
- Ridgway v. Scott, 114 So. 2d 844 (Miss. 1959) (appeal rights limited to parties to the action below)
- Pearson v. Browning, 106 So. 3d 845 (Miss. Ct. App. 2012) (contempt actions governed by Rule 81 service requirements)
- Reasor v. Jordan, 110 So. 3d 307 (Miss. 2013) (appeal waiver for failure to timely object to service in Rule 81 matters)
- McDonald v. McDonald, 850 So. 2d 1182 (Miss. Ct. App. 2002) (contempt and related attorney’s fees are within chancellor’s discretion)