Modification During a Pending Appeal

April 14, 2015 § Leave a comment

In 2011, Brad and Caroline Nurkin were divorced in Tennessee. Caroline later relocated to Mississippi, and brad to Georgia.

In 2012, Caroline filed a modification of visitation and contempt action against Brad. The chancellor ruled that the court had jurisdiction over the modification, but dismissed the contempt.

There was a hearing, and on September 20, 2013, the chancellor entered a judgment modifying the visitation schedule. Both parties filed post-trial motions, which the chancellor denied. Brad then filed his notice of appeal on October 21, 2013. Then, on November 22, 2013, Brad filed a contempt action that included a motion to clarify the September ruling to specify when his visitation would commence. The judge entered an order not only clarifying that point, but also further modified Brad’s visitation.

On appeal, Brad argued that the chancellor had no jurisdiction to modify his original judgment, since the case was on appeal. The COA agreed. Judge Lee, wrote for the unanimous court in Nurkin v. Nurkin, handed down April 7, 2015:

¶16. Brad contends that the chancellor did not have jurisdiction to modify the original judgment while the appeal was pending. As previously stated, the chancellor entered the order modifying visitation on September 20, 2013. Brad then filed a notice of appeal on October 21, 2013, which was the day his post-trial motion was denied. On November 22, 2013, Brad filed his motion for contempt asking for clarification regarding his weekend visitation schedule. On December 16, 2013, the chancellor modified the judgment and clarified Brad’s weekend visitation. The chancellor also awarded Brad one extra monthly visitation if it occurred in Hattiesburg. Brad now argues that the chancellor did not have jurisdiction to modify the original judgment while it was on appeal. We note that Brad sought clarification of his visitation schedule, and after receiving extra visitation, he is now arguing that the chancellor had no jurisdiction to order the extra visitation while the appeal was pending.

¶17. The supreme court has held that ordinarily the filing of a notice of appeal transfers jurisdiction of a matter from the lower court to the appellate court, and the lower court no longer has the authority to amend, modify, or reconsider its judgment. McNeese v. McNeese, 129 So. 3d 125, 128 (¶7) (Miss. 2013). If an appeal has no supersedeas bond, as in this case, a party may execute on the judgment, but the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” McNeil v. Hester, 753 So. 2d 1057, 1076 (¶68) (Miss. 2000). In McNeese, the supreme court held that an agreed order entered by a chancellor while an appeal was pending “merely specified how the previous [j]udgment of [d]ivorce should be satisfied. . . . [It] did not broaden, amend, modify, vacate, or clarify the judgment through the [a]greed [o]rder.” McNeese, 129 So. 3d at 129 (¶12). However, in this case, the chancellor modified the original judgment by awarding Brad extra visitation with Jake. Consequently, the order entered December 16, 2013, is void and must be vacated.

This is a subject about which we’ve talked here before, and here.

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