What isn’t There Can Make a Big Difference

April 11, 2016 § Leave a comment

Dee Myrick filed a Complaint for Divorce against her husband, John, in 2013. The complaint was based on the fault ground HCIT. At a temporary hearing, the chancellor ordered John to pay temporary alimony.

Later, the parties withdrew fault allegations and entered into a consent for divorce on the ground of irreconcilable differences. The contested issues submitted for adjudication were: “property division including allocation of debt”; attorney’s fees; and “division of all real property.” Alimony was not mentioned.

Following a trial and rehearing motions, the chancellor divided the marital estate and awarded Dee $600 a month in periodic alimony. John appealed the award of alimony.

In Myrick v. Myrick, decided February 23, 2016, the COA reversed on the issue of alimony and remanded. Judge Barnes wrote for the court:

¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.

Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a creature of statute,” and the parties must strictly adhere to the statutory mandates of irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).

¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable differences. She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November 2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month to Dee in lieu of the house payment.

¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable differences divorce. It listed matters the chancellor should decide as “property division, including allocation of debt”; attorney’s fees; and “division of all real property.” No mention was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault grounds. The chancellor had, however, ordered the temporary relief of alimony when the divorce sought was based on fault grounds, rather than irreconcilable differences.

¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable differences-divorce case because the consent failed to comply with required statutory language, and the parties failed to set forth with specificity the issues to be decided by the court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16). Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he cannot now award it.

¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss. Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to consider an award of attorney’s fees in a divorce action where the parties did not include this issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support, and equitable distribution because the parties stated in their consent agreement the only issue the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d at 926 (¶12).

¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of “property division” analysis, and is therefore proper here, citing the Ferguson factor regarding “the extent to which distribution can eliminate future periodic payments.” Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute is clear that the resolution of all issues must be specifically set forth in the consent agreement. The court’s award of periodic alimony was without authority and must be reversed.

The court remanded rather than render for Ken because the chancellor had originally ordered Ken to pay Dee lump-sum alimony “based on need.” The COA instructed that, on remand, the chancellor was to clarify whether the lump-sum alimony was part of property division, which could be reinstated, or was alimony, which could not.

It makes perfect sense that, if something is left out of a negotiated agreement such as a consent, it should be assumed that its omission came about as a result of negotiation. The statute requires that all contested issues be clearly set forth. If you leave something out, unless the other side agrees to let it in, you won’t be able to get it in.

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