January 16, 2013 § Leave a comment

Can a chancellor order alimony in an opinion to take effect before entry of the judgment?

That was the question in McCarrell v. McCarrell, 19 So.3d 168, 171 (Miss.App. 2009). In that divorce case, the chancellor had rendered a written opinion on December 20, 2007, concluding that Billy McCarrell should pay Janie McCarrell $1,800 a month in rehabilitative alimony, commencing January 5, 2008, and continuing for five years. The judgment corresponding to the court’s opinion was not filed and docketed by the clerk until January 18, 2008, thirteen days after the date of the first ordered payment. The judgment did incorporate the judge’s opinion.

Billy took the position that he was required only to comply with the final judgment, and not with the opinion. Since the final judgment was not entered until after the initial payment date was passed, he argued that the alimony obligation did not go into effect until after the date of the judgment.

On the face of it, Billy’s position makes some sense, because MRCP 58 states that “A judgment shall be effective only when entered as provided in MRCP 79(a),” and 79(a) defines entry as docketing on the General Docket showing the date of entry and a brief description, followed by filing in the court file.

What Billy overlooked, though, was the power of the chancellor to order interlocutory and temporary relief. The court said, beginning at ¶12:

… our jurisprudence recognizes that the chancellor possesses the statutory authority to order temporary alimony and make proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2) (Miss.2004). Moreover, courts are always deemed open for purposes of making and directing all interlocutory motions, orders, and rules. See also M.R.C.P. 77(a).  * * *

¶ 14. Certainly, the chancellor possesses the authority to order temporary alimony and make all proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2); M.R.C.P. 77(a); see also Langdon v. Langdon, 854 So.2d 485, 496(¶ 44) (Miss.Ct.App.2003). The duty to pay temporary support terminates upon entry of the final judgment of divorce, but the judgment does not eliminate the obligation to pay temporary alimony arrearages which accrued before the entry of the final decree. Prescott v. Prescott, 736 So.2d 409, 416(¶ 35) (Miss.Ct.App.1999) (citing Lewis v. Lewis, 586 So.2d 740, 741 (Miss.1991)). Stated differently, a temporary order is not a final order; however, arrearages accrue on unpaid temporary support payments. Id. Further, temporary support orders are enforceable through contempt actions. [McCardle v.] McCardle, 862 So.2d at 1292(¶ 9); see also Bell on Mississippi Family Law § 9.01[5][c], at 236 (2005). 

In this district, more often than not in more complicated cases I render a detailed opinion making findings of fact and conclusions of law, and I direct one of the attorneys to draft a judgment corresponding to the opinion, with instructions to present it to the court after it has been approved as to form by counsel opposite. Every now and then, a judgment will be delayed for one reason or another. McCarrell addresses what happens to the relief granted in that situation.

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