If You Want it You Have to Ask for It

February 26, 2018 § 1 Comment

Aside from the fact that it illustrates what a forlorn and hapless task it can be to file and prosecute one’s own appeal, the COA’s decision in Elkins v. Elkins, handed down February 6, 2018, is a reminder that your pleadings must include ” … a short and plain statement of the relief to which he deems himself entitled …” and ” … a demand for judgment for the relief to which he deems himself entitled.” (MRCP 8(a)(1) and (2)).

Kimberlana Elkins, representing herself, appealed from a judgment of divorce that included an adjudication of contempt against her ex-husband, Robert. On a R59 motion, the trial judge had reduced the adjudicated contempt arrearage, and Kimberlana claimed on appeal that the reduction was error. Judge Barnes wrote for a unanimous court:

¶26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of $42,604.47. He further held that Robert failed to pay sums accruing from the order of contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually until paid in full. Robert filed a motion to reconsider the judgment, and the court determined that because Kimberlana had not requested temporary child support in her initial complaint for divorce filed in July 2010, the court did not have the authority to order such and the temporary order was void ab initio. Therefore, the judgment was modified, and the amount of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in arrearage, and decreasing the amount of arrearage owed.

¶27. “Child support may not be awarded unless it is requested in the pleadings, tried by consent, or the court notifies the parties that the issue will be addressed.” Deborah H. Bell, Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted in its order, Kimberlana’s complaint did not contain any plea for child support or maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery court grant her a divorce based on irreconcilable differences and additionally stated: “If mistaken in the relief prayed, [she] prays for such further general relief and equitable relief to which she is entitled to receive.” Furthermore, the record reflects that Robert was not provided an opportunity to object to the chancellor’s award of temporary support, as he was not present at the hearing. A month after the order was entered, Robert filed a motion to set aside the temporary order, claiming that he was not notified of the proceedings. In Massey v. Huggins, 799 So. 2d 902, 910-11 (¶¶33-34) (Miss. Ct. App. 2001), we reversed a chancery court’s award of child support, as the appellant “was not provided notice that she ‘might be required to defend a claim of child support’ nor was there a ‘suggestion in the record that support payments from [the appellant] were even being contemplated by the court on its own or asked for by’ [the appellee].” (Quoting Morris v. Morris, 359 So. 2d 1138, 1139 (Miss. 1978); but cf. Lee v. Stewart, 724 So. 2d 1093, 1095 (¶4) (Miss. Ct. App. 1998) (Although child support was not requested in the pleadings, the award of child support was affirmed, as the record indicated the father did not object to the issue at trial, “but instead elected to argue on its merits”; thus, “th[e] issue was tried with [his] implied consent.”).

¶28. We find no error in the chancery court’s findings, as child support was not included in the pleading, and there was no evidence that the issue was tried by consent.

In simple terms: Robert could not be held liable for sums that he never had notice to defend against. That’s the due-process side of the coin. And I agree in this case that the chancellor could not go back and create a retroactive obligation absent a prayer for that relief and an opportunity to defend.

To change the facts slightly, I wonder whether a claim for child custody, standing alone, is not enough to support a claim for the support and maintenance that would be in the best interest of and for the benefit of the child. Say in a divorce complaint, all that is prayed for is custody; there is no prayer for child support. May the chancellor, over objection, award child support, medical support, and maintenance? I think MCA 93-5-23 authorizes it. See also Steen v. Steen, 641 So.2d 1167, 1171 (Miss. 1994); Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1990).

§ One Response to If You Want it You Have to Ask for It

  • Bob Marshall says:


    I agree with your conclusions regarding Elkins v. Elkins.

    However, there is no way to square Elkins with Bluewater Logistics, 2008-CT-00250. WHERE THE Supreme Court stated I should have known what Williford was asking for, even though I had specifically objected at the trial of the matter to any proof outside the pleadings.

    Court of Appeals agreed with me” If you don’t ask for it, you don’t get it”

    Jess Dickinson and crew on cert decided that you don’t have to ask ands skipped to the point where I was supposed to try a case with n o pleadings to sustain the trial allegations and relief sought. Since the Supreme Court has spoken directly to the issue, I question the value of a COA decision to the contrary..

    Whoever was involved in Elkins should have brought up Bluewater. BOB MARSHALL MSB1880


    Robert R. Marshall, Esq.
    525 Corinne Street
    Hattiesburg, MS 39401
    601-582-5015 (T)
    601-582-5046 (F)

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