Appealing from a Consent Judgment
February 10, 2015 § Leave a comment
William Peebles and his wife, Sandra, were divorced in March, 2004. In the divorce, William agreed to pay Sandra’s house payments, but he fell behind in his payments to the tune of $64,000. Sandra sued him for contempt and to collect the arrearage. William countered with various defenses, including that he was entitled to a credit against the house payments in the amount of the Social Security benefits that Sandra had begun drawing based on his contributions.
William sought summary judgment on the issue, which the chancellor denied based on the fact that credit for Social Security was not mentioned in the PSA incorporated into the divorce judgment. Following that ruling, the parties entered into a “consent judgment” in which William conceded that he owed Sandra $54,000, plus some other expenses. The judgment specified that William would have the right ” … to seek an appeal from the … pretrial ruling denying his request for credit …” for the Social Security benefits. William did appeal.
His appeal, however, was not limited to the Social Security issue. He also attempted to raise other issues, including whether his house-payment obligation had been discharged in bankruptcy, an argument that the chancellor had overruled. In Peebles v. Peebles, handed down December 9, 2014, the COA rejected William’s attempt to inject other issues into the appeal. Judge Maxwell, for the court:
¶11. William’s first appellate claim ignores the consent judgment he entered with Sandra and backtracks to his initial suggestion that his house-note obligation was discharged in bankruptcy. We find William’s claim is not only barred but also lacks merit.
A. Consent Judgments Are Binding
¶12. First, William entered into a consent judgment, conceding he indeed owed Sandra the money on the house note. And consent judgments are “given the same force and effect as judgments rendered after litigation.” Smith v. Malouf, 826 So. 2d 1256, 1259 (¶10) (Miss. 2002). We do note, however, that while consent judgments are “binding and conclusive, operating as res judicata and an estoppel to the same extent as judgments after contest[,]” there are limited grounds for an appeal from a consent judgment. But none of those exceptions are present here.
B. Appealability of a Consent Judgment
¶13. “Until 1991 there was a specific statutory bar to appealing from a consent judgment.” Sanghi v. Sanghi, 759 So. 2d 1250, 1255 (¶22) (Miss. Ct. App. 2000) (citing Miss. Code Ann. § 11-51-3 (1972) (an appeal may be taken from any judgment that is not “by confession”), amended 1991 Miss. Laws ch. 573, § 79). But “now an appeal can be taken from any judgment other than one by default.” Id. (citing Miss. Code Ann. § 11-51-3 (Supp. 1999)). To survive the bar against appealing consent judgments, the issues on appeal must be akin to those under Rule 60(b)—claims such as fraud, misrepresentation, accident, or mistake. Rushing v. Rushing, 724 So. 2d 911, 915-16 (¶¶19-20) (Miss. 1998). As our supreme court has put it, for a consent judgment to be appealable, “the allegation and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id. at 916 (¶22) (quoting Askew v. Askew, 699 So. 2d 515, 520 (Miss. 1997)).
¶14. From our review here, it is obvious that relitigating the discharge issue is William’s chief concern. William does not contest the validity of the consent judgment; he simply wants to reargue something he ultimately agreed about—the fact that he owed Sandra $54,686.60 on the house note. Had he reserved the right to appeal this issue as he specifically did with his claim he should be credited for Social Security benefits, the bankruptcy issue would be properly before us. But he opted not to preserve it, so we find the bankruptcy-discharge issue is barred.
¶15. Still, while the discharge issue is barred, a look at the merits shows William listed his house-note obligation on his bankruptcy schedules as a “domestic support obligation.” And it is well established that a chapter 7 discharge “does not discharge an individual debtor from any debt . . . for a domestic support obligation[.]” 11 U.S.C. § 523(a)(5) (emphasis added). So even though the issue is barred, we find the chancellor was right that the note obligation was not discharged by William’s chapter 7 bankruptcy.
[The footnotes are omitted].
It would seem, then, that only the after-the-fact issues such as R60 matters would be appropriate for an appeal, and the subject matter of the agreement — “that which is already settled” — is off limits to an appeal.
Be careful what you bind your client to in an agreed order. That’s not to say you should eschew settlement attempts or be afraid to enter into a binding settlement. I am only saying that you need to consider carefully exactly what it is your client is getting in return for what he or she is giving up, and it is critical that you get your client to understand it, preferably by confirming it in writing with your client’s acknowledgment.