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.

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§ 5 Responses to STAY OF EXECUTION

  • Kenton says:

    If a motion for a new trial is timely filed, within the 10 day window, we feel strongly that the divorce is still pending and no judgment shall be entered for divorce until after the pending motion for a new trial is disposed of. Per Rule 62 of M.R.C.P. This is ultimately my question, when is a divorce final. LA, AL, and Utah law each discuss it in detail within statute whereas it states that no divorce is final until all motions for new trial are disposed of, or 10 days, or upon the findings are issued upon appeal. Then and only then is a divorce final. Thoughts please..

    • Larry says:

      My opinion … the divorce is final and enforceable immediately, but is subject to being set aside per MRCP 59 or 60. You can not ignore the court’s judgment (e.g., as to custody, support) because it is not “final” in that sense.

    • Larry says:

      My opinion … the divorce is final and enforceable immediately, but is subject to being set aside per MRCP 59 or 60. You can not ignore the court’s judgment (e.g., as to custody, support) because it is not “final” in that sense. Neither MRCP 59 nor 60 stays operation of a judgment.

  • Kenton says:

    Chancellor,

    I like the comment. In a case I am reviewing, there was a timely filed motion for a new trial within 10 days of the order for divorce. Is the divorce itself stayed pursuant to Rule 62(a) automatic stay until disposition for motion for a new trial. I cannot find any case law to state otherwise, adversely or positively. A strict interpretation states that there is an automatic stay of the enforcement of the judgment, and in divorce cases reviewed, an entire judgment must be set aside , suspended, or stayed.

    • Larry says:

      My understanding is that any money judgment is stayed from execution. For example, if the chancellor orders surrender of a child immediaately, that is not stayed. Whether actually stayed in the sense of “put on hold” or not, however, the judgment is never final until 10 dayes have passed, because the other side may file a motion to reconsider, or the judge may, on her own motion, change its terms for any reason, within 10 days of entry.

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