November 29, 2012 § Leave a comment

A chancellor has the power to impose conditions that may seem “just and proper under the circumstances,” regardless whether any party demanded such relief. Miss. State Highway Commission v. Spencer, 233 Miss. 155, 101 So.2d 499, 504-05 (1958).

The source of this power is apparent in several of the maxims of equity:

  • Equity will not suffer a wrong without a remedy.
  • Equity delights to do complete justice and not by halves.
  • Equity acts specifically and not by way of compensation.

The proper focus of a chancery court remedy, then, should be to fix the underlying problem, completely and not in part.

In three recent COA cases, the court upheld chancellors’ rulings where the trial judge went beyond the pleadings to fashion a remedy designed to fix the underlying problem.

In Goolsby v. Crane, decided October 23, 2012, and discussed in a previous post, the parties were before the court on the mother’s petition to modify to increase child support, and the father’s counterclaim for custody. After hearing all of the testimony, particularly that of the children, the chancellor found that the then-existing visitation schedule was not working, and he modified the visitation schedule. No one had asked for that particular relief, but the COA affirmed on the basis that there was substantial evidence to support the judge’s action.

The case of Finch v. Finch, handed down October 2, 2012, which was the subject of a previous post here, arose from post-divorce contempt and modification procedures. The ex-husband pled that the ex-wife’s alimony should be terminated because she had misled him about joint debts when he agreed to a property settlement agreement, and he now found himself saddled with considerable debt. The chancellor took it a step further and found that the ex-wife had committed a fraud on the court, justifying termination of her alimony. The ex-wife appealed, copmplaining that the ex-husband had failed properly to plead fraud (see Rogers v. Rogers, decided August 1, 2012, and posted about here). The COA affirmed, finding that there was a substantial basis to support the chancellor’s decision, and pointing out anyway that the mention of the words “falsely represented” in the ex-husband’s petition was enough notice that the issue was in play. The court also pointed out that the chancellor has the power under MRCP 60(b) on her own motion to address fraud.

In Scott v. Scott, decided October 30, 2012, the parties had entered into a 1997 property settlement agreement that gave the ex-wife all of the ex-husband’s Tier II Railroad Retirement Benefits “through the date of the divorce.” A separate order was drafted for submission to the retirment agency in the form required by that agency, but the order left out the phrase “through the date of the divorce.” Predictably, when the husband applied for his benefits, he learned to his chagrin that the agency, relying on the order, had awarded the wife 100% of the Tier II without limitation. The ex-husband asked the chancellor to modify to correct the situation, and the ex-wife denied that the property division could be modified. The chancellor brushed aside both positions and invoked MRCP 60(a) to correct the clear discrepancy between the express terms of the parties’ agreement and the order. The COA affirmed.

The common thread in each of these cases is that the trial judge did what she or he deemed “just and proper under the circumstances” to fix the underlying problem. It’s a matter of substance over form.  


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