The Rule 59 Motion and the Scope of the Appeal
April 24, 2018 § Leave a comment
Can an MRCP 59 motion that is limited in scope have the effect of limiting the scope of your appeal?
Jennifer Baumbach argued in her appeal to the COA that her ex, Robert, had foregone the issue of child custody by not raising it in his R59 motion following entry of their divorce judgment. In the case of Baumbach v. Baumbach, decided April 3, 2018, the court rebuffed her argument, per Judge Barnes:
¶20. Citing Jennifer’s previous attempts to interfere with his visitation, Robert claims the chancellor’s decision to award Jennifer sole physical custody of the children “was against the weight of the evidence and should be overturned.” Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:
[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial . . . when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter’s transcript, . . . [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.
Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982) (“[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[,] and judgment of the court.”). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert’s motion to alter or amend the judgment does not bar it from review on appeal.
That certainly has been the rule in chancery court bench trials from time immemorial, or at least as long as I can remember. I’ve posted about it previously here and here.
Notwithstanding all that, I still encourage you to plead the figurative kitchen sink in your R59 motions. A post explaining my thoughts on the matter is at this link.
The Better Chancery Practice Blog 
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