The Duty to Make a Record
October 23, 2018 § 3 Comments
Following a hearing on Kellie McCarley’s claim for separate maintenance from her husband, Rickey McCarley, the chancellor announced that, although she would like to make a ruling from the bench right then, she needed to review the exhibits first. She scheduled a telephone conference to discuss her ruling with the attorneys. In that conference, she gave her opinion denying Rickey’s claim for divorce and granted Kellie separate maintenance. The telephone conference was not recorded or otherwise made a part of the record. There was also an amended order that clarified the chancellor’s ground for awarding separate maintenance.
Rickey appealed arguing among other grounds that the chancellor erred in not directing that the telephone conference be made a part of the record.
The COA affirmed in McCarley v. McCarley, decided August 21, 2018, with an opinion by Judge Carlton:
¶10. Rickey argues that the chancellor erred in failing to direct that the transcript from the telephone opinion be made part of the record. Rickey asserts that the amended order only states the chancellor’s conclusions in very abbreviated form and contains none of the underlying facts nor applies the law to those facts.
¶11. In support of his argument, Rickey cites to Uniform Chancery Court Rule 4.02, which provides that a chancellor’s opinion may be given orally or in writing. If the chancellor pronounces her opinion orally, then “it shall be taken down by the [c]ourt [r]eporter who shall, when directed by the [c]ourt, transcribe the same and submit it to the [c]hancellor for correction and approval.” UCCR 4.02. Rule 4.02 mandates that whether the opinion rendered is made orally or in writing, it “shall be filed among the papers and become a part of the record in the cause without any order or direction to that effect.” Id.
¶12. We recognize that Rule 52(a) of the Mississippi Rules of Civil Procedure states that in cases tried without a jury, “the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” (Emphasis added).
¶13. Similarly, Uniform Chancery Court Rule 4.01 provides “In all actions where it is required or requested, pursuant to [Rule] 52, the [c]hancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor.” (Emphasis added).
¶14. At the conclusion of the hearing in the present case, the chancellor scheduled a telephone conference with the attorneys. The chancellor explained that she would give her opinion on the matter via telephone and would also request one of the attorneys to prepare the order at that time. The record contains no transcript from the telephone conference, but the record does contain the chancellor’s written order and amended order setting forth her ruling.
¶15. In the chancellor’s amended order, she denied Rickey’s complaint for divorce on the ground of habitual cruel and inhuman treatment based on “lack of proof.” The chancellor also found “that [Kellie] is without material fault in the separation and that [Rickey] abandoned [Kellie] and has refused to provide any support.” The chancellor then determined that Kellie “has met the burden of proof necessary to support her claim for separate maintenance.” The record contains no request by Rickey or his attorney for the chancellor to find specially and state separately her conclusions of law.
¶16. We recognize that “[t]he burden rests upon the appellant to provide a record that contains all information needed for an understanding of matters relied upon for reversal on appeal.” Wells v. Price, 102 So. 3d 1250, 1259 (¶30) (Miss. Ct. App. 2012). This Court cannot consider or act upon matters not included in the record; rather, we “must confine ourselves to what actually does appear in the record.” Id. In Wells, 102 So. 3d at 1259 (¶32), the appellant failed to include in the record the transcripts from a bench trial and a telephone hearing, as well as the judgment entered after a separate bench trial. This Court affirmed the trial court’s judgment, explaining that “[b]ecause [the appellant] did not provide us an
adequate record, . . . we cannot find the trial court in error and must assume the trial court’s ruling is correct.” Id. [Fn 2]
[Fn 2] Cf. Daley v. Daley, 909 So. 2d 106, 107 (¶8) (Miss. Ct. App. 2005). In Daley, the record failed to contain a transcript of the proceedings before the chancellor or any factual or legal foundation for the chancellor’s decision below. Id. This Court acknowledged that Uniform Chancery Court Rules 4.01 and 4.02 provide that the chancellor can “create either an oral or a written record at his discretion,” but “if the chancellor opts for an oral opinion, it must be transcribed for the record.” Id. at 107-08 (¶9). This Court then remanded the case back to the chancellor with instructions for the chancellor to create a record of his factual findings and conclusions of law. Id. at 108 (¶10).
¶17. In Baggett v. Baggett, 246 So. 2d 887, 889 (¶21) (Miss. Ct. App. 2017), this Court found no merit to the appellant’s claim that the chancellor erred by failing to make findings of fact and conclusions of law in his judgment denying the appellant’s complaint for divorce. The Baggett court held that not only did the appellant fail to request that the chancellor make findings of fact and conclusions of law, but the facts of the case “were neither hotly contested, greatly in dispute, nor complex so as to require the chancellor to [make findings of fact and conclusions of law] without a request.” Id. at (¶19) (citing Tricon Metals & Servs., Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987)).
¶18. Similarly, in Turner v. Turner, 744 So. 2d 332, 337 (¶22) (Miss. Ct. App. 1999), the appellant argued that the chancellor erred by failing to make separate findings of facts and conclusions of law or on-the-record findings regarding his award of child support. Upon review, this Court found no error, explaining that “neither party requested in writing, or in any other acceptable manner, that the chancellor issue separate findings of fact or
conclusions of law.” Id. at (¶26).
¶19. In the case before us, the record contains the transcript of the trial testimony from Rickey, Kellie, Penny, and Rickey’s brother, Roger. Although the record does not contain a transcript of the telephone conference with the attorneys where the chancellor made her ruling orally, the record does contain the chancellor’s amended written order reflecting her aforementioned ruling. Furthermore, Rule 4.02 mandates that if a party requests the chancellor to find the facts specially and state separately her conclusions of law, “[t]he request must be made either in writing, filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor.” No such request by either party appears in the record before us. This issue lacks merit.
I can’t add much to that.
The Better Chancery Practice Blog 
And even if the court didn’t make the record, the party who wanted a record could have filed a MRAP 10(e) motion, or filed a MRAP 10(c) statement of what was said on the phone call. You never have to just shrug your shoulders and say, oh well, no record.
Exactly. And a R59 motion would likely have worked.
Of course, what should have happened is for the court to find the separate maintenance statute unconstitutional as being a form of lifelong servitude.