STAY OF EXECUTION
April 6, 2011 § 5 Comments
In a divorce the judge grants your client a judgment in the amount of $115,000 for her interest in a marital-asset business. The judge orders the husband to pay the judgment at the rate of $500 a month. Can you execute on the judgment even if the husband is making the payments as ordered by the court?
The answer is Yes, you may execute regardless of his payment history.
In the case of Jenkins v. Jenkins, handed down March 29, 2011, the COA cited Peeples v. Yarbrough, 475 So.2d 1154, 1158-59 (Miss. 1985), and reversed a chancellor’s ruling that execution on the judgment was stayed as long as the defendant made the payments as ordered. The COA held that the chancellor has no authority to stay execution on the judgment, although the judge does have the authority to order and enforce a payment schedule.
So what to do if the chancellor does include a stay with entry of the judgment? I would suggest that you file a timely MRCP 59 motion to reconsider citing Jenkins and Peeples. If you don’t, you run the risk of running afoul of your trial judge, even if his or her judgment was contrary to the law.