EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 14, 2011

Blue Valentine: Court Of Appeals Of Mississippi Finds Rule 408 Doesn't Cover Divorce Property Settlement Agreement

Similar to its federal counterpart, Mississippi Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

But does Rule 408 preclude the admission of a property settlement agreement in a divorce agreement? According to the recent opinion of the Court of Appeals of Mississippi in Wilson v. Wilson, 2011 WL 386814 (Miss.App. 2011), the answer is "no."

In Wilson, Kelly Wilson

filed a complaint for divorce against Tara [Wilson] on the grounds of habitual cruel and inhuman treatment and uncondoned adultery or, in the alternative, irreconcilable differences....The chancellor granted the divorce on the ground of irreconcilable differences....They let the chancery court decide which party should have custody of their child, decide the division of marital property, determine the disposition of their marital home and who should pay the outstanding debts on the home, and determine who should make the guardian ad litem (GAL) payments.

The chancellor thereafter awarded full custody of the child to Kelly Wilson.

The chancellor did not award Tara any alimony, and she was not required to pay child support. The couple had previously entered into a property-settlement agreement, which was found to be a binding contract between the parties as to the property-division portion.

Tara Wilson thereafter appealed, claiming, inter alia, "that the chancellor erred in admitting the property-settlement agreement into evidence as an exhibit over her objection that it violated Mississippi Rule of Evidence 408." The Court of Appeals of Mississippi disagreed, concluding that because "this property-settlement agreement is a binding contract between the parties concerning an agreed equitable division of their marital property, it is not a settlement or an offer to settle. Thus, Rule 408 is not applicable, and this issue is without merit."



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