Temporary Setbacks, Part I
December 30, 2013 § 4 Comments
A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:
I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.
Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.
The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”
As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.
I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:
- “No.”
- “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
- “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
- “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
- “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
- “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
- “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
- “No. Never. No justiciable issue.”
That’s about 20% of the chancellors.
If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.
The Better Chancery Practice Blog 
Another oblique matter. One party may withdraw consent to the id divorce, thereby throwing everything out. What if there is a temporary and one party is dissatisfied and says “I quit”? The case in toto is over, right? Also, in a psa attached to the id divorce, what if a party does not pay support, bills, etc.? Can you have contempt while the 60 days are pending in an id divorce? Once again, what if the other party picks up his or her toys and goes home?
My opinion:
(1) If the complaint upon which the action is based is dismissed, then everything, including the temporary order, is dead; except that any relief ordered under the temporary that was not paid while the order was in effect (e.g., child support) may still be collected.
(2) If the PSA was incorporated by the court in a temporary order, as in some of the judges’ comments above, then it may be enforced as other orders. If it was not incorporated into a temporary order, it is not enforceable until it is incorporated into a judgment.
In expanding, let’s say temporary relief of possession of the house was awarded. How does the non-possessory spouse end the relief? He can’t demand a trial. What if there is no change in circumstances?
Why can’t he demand a trial? MCA 93-5-7 says that either party may request the clerk to “set down on the issue docket” a divorce case, which I take in more contemporary terms to mean that either party may advance the case on the docket as with any other litigation.