June 5, 2013 § 1 Comment

The COA case of Gordon v. Gordon, decided May 21, 2013, is the latest in that ever-growing body of jurisprudence that I refer to as “Zombie Law” (hereinafter “ZL”). These are cases that appear to have been laid to their final rest by the chancellor’s ruling, often with the full agreement of both parties, only to have them rise from their grave later via post-judgment issues and appeals.

Wanda and Charles Gordon entered into a statutory consent to divorce agreeing that the one issue for adjudication by the court was, “Whether or not [Charles] is entitled to receive money from [Wanda].” The COA opinion also states that the crux of the dispute was whether Wanda had misappropriated some $46,000 of marital funds, although it is unclear from the opinion whether that issue was expressly set out in the consent.

The chancellor heard the testimony on November 8, 2004, and concluded that there was inadequate information upon which to base an adjudication regarding the contested issue. On December 17, 2004, he entered a judgment that the trial be continued to a later date for more substantial evidence on the contested issue, and he said that he would ” … go ahead and grant the divorce …, just so that [Charles and Wanda] can get that out of the way.” The judgment stated that the chancellor would retain “jurisdiction to adjudicate those matters pertaining to the division of property and support and maintenance of the one remaining minor child of the parties” [Emphasis added]. The latter language was not included in the original consent.

On January 31, 2005, Wanda filed a motion to set aside the divorce judgment. The hearing on the motion was not held until November 16, 2010. The chancellor did set aside the divorce, and, in response to Charles’s motion to reinstate it, said that he would if Charles would withdraw his claim for the $46,000, which he did, at which point the chancellor entered his judgment of divorce nunc pro tunc to December 17, 2004.    

Wanda appealed, claiming that the chancellor erred by not dividing the marital estate, including military retirement, and adjudicating child support and custody. The COA affirmed.

Here are a few points from the opinion:

  • Wanda’s argument rests heavily on the language of the consent statute, MCA 93-5-2, which states that “No divorce shall be granted … until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been adjudicated by the court …” She took the position that the chancellor had to address those statutory issues before adjudicating the divorce. The COA did not buy her argument. Notice the language of the statute, ” … raised by the pleadings …” In context, that would appear to apply to the consent, since the consent supplants the original pleadings. But be aware that the MSSC in McNeese v. McNeese, handed down April 25, 2013, held in yet another ZL case that, “The consent agreement at issue is not a motion, pleading, or a consent judgment …” Not sure how those two principles fit together, but in this case the COA did not agree with Wanda’s position.
  • The chancellor was right to set aside the divorce. The statute clearly states that no divorce may be granted until all of the contested issues have been adjudicated.
  • Wanda also claimed that the chancellor was in error in not ordering Charles to pay child support for her great-nephew, of whom she had custody per a S. Carolina judgment. Three guesses how that turned out.
  • I applaud the chancellor for refusing to go ahead and adjudicate the contested issue on scant, insufficient evidence.

If you want the chancellor to address a particular issue via consent, be sure that the statement of the contested issue clearly states what the judge is expected to decide. I am not convinced that the language, “Whether or not [Charles] is entitled to receive money from [Wanda]” does the job.

And a final lesson from this latest ZL case: It’s never over any more until it’s over, and even then it may not yet be over. The days of parties and lawyers sticking to their agreements and being held bound by them is sadly past, now merely a quaint reminder of the past like buggy whips and quill pens.

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  • kenton mcneese says:

    Interesting observation regarding my case which is up for reconsideration, McNeese v. McNeese. Within my argument for reconsideration, it does refer to the statute indicating that the ID consent agreement is a pleading as it presents matters to the court based upon the “pleading” within the ID consent agreement. It is also a motion, requesting the court to take action in the matter, after an agreement has been reached to deal with the “pleadings” of both parties together. Lastly, the MSSC failed to apply the fact that all “papers” shall be signed by attorneys also. Papers are described in MRCP rule 7. Clearly, the ID consent agreement is a “paper”, but also meets the legal definitions of a “pleading” as well as a “motion”. I would refer specifically to MRCP 7 (b) (2) referencing Motions and other papers. Thanks for your insight and contemplations of application of law, as well as the confusion that comes along with it, for the lay person, as well as legal professionals.

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