Bifurcation and the Appeal
April 3, 2019 § Leave a comment
It’s becoming more and more common that contested divorce trials are bifurcated so that the grounds are tried separately from the issues of equitable distribution, alimony, etc. Under this practice, the grounds are tried first. If no divorce is granted, that’s the end of that. If, on the other hand, the court finds that the grounds are proven, then the court retains jurisdiction to determine property division and other such issues at a later date. The advantages are manifold, chiefly that one does not have to invest the time and money to develop evidence relating to property unless and until a divorce is granted.
That’s what was done in the divorce case of Mary and Glen Montgomery. The court bifurcated the case, and a hearing was held on the grounds for divorce. Following the hearing, the chancellor found that Glen had proven HCIT, and granted the divorce. The judge did commence a hearing on the remaining issues, which involved property only, but the hearing could not be concluded, and it was recessed to a date four months later. The court entered a judgment on the day of the hearing granting Glen the divorce and stating that “Matters of equitable division [would] be addressed in a later judgment.” The judgment also recited that “This is a final judgment on the grounds for divorce only. The Court hereby reserves jurisdiction …” over all of the remaining financial issues. Mary, who had represented herself in the proceedings, filed a timely pro se appeal.
In Montgomery v. Montgomery, decided March 5, 2019, the COA dismissed the appeal for lack of jurisdiction. Judge Jack Wilson wrote for the court:
¶5. A fuller recitation of the facts of the case is unnecessary because we lack jurisdiction. See Walters v. Walters, 956 So. 2d 1050, 1051 (¶2) (Miss. Ct. App. 2007). “Though the issue has not been raised by the parties, this Court is required to note its own lack of jurisdiction.” Id. at 1053 (¶8). “Generally, only final judgments are appealable.” Id. (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)). “A final, appealable, judgment is one that ‘adjudicates the merits of the controversy[,] . . . settles all issues as to all the parties[,]’ and requires no further action by the lower court.” Id. (brackets omitted) (quoting Banks v. City Finance Co., 825 So. 2d 642, 645 (¶9) (Miss. 2002)).
¶6. “A judgment granting a fault-based divorce is a non-final order if issues attendant to the fault-based divorce, such as property division, remain before the lower court.” Id. at (¶9). That is precisely the situation here. The chancery court’s judgment granting a divorce expressly stated that the court reserved jurisdiction to divide the marital estate and resolve all other financial matters related to the divorce. Therefore, the judgment granting a divorce “was not a final judgment from which an appeal could be taken.” Id.; accord, e.g., M.W.F. v. D.D.F., 926 So. 2d 897, 898-900 (¶¶3-6) (Miss. 2006) (holding that a “judgment of divorce” granting a divorce was not final because it did not resolve issues of property
division, alimony, child custody, and child support); Ory v. Ory, 936 So. 2d 405, 408 (¶3) & n.1 (Miss. Ct. App. 2006) (explaining that a “judgment of divorce” was not final because the chancery court reserved the division of the marital assets for a later date). The judgment granting a divorce was not final even though it was labeled as a “final” judgment. Walters, 956 So. 2d at 1052-54 (¶¶5-7, 9, 11-12) (holding that a “Final Judgment of Divorce” was not a final, appealable judgment because the equitable division of the marital estate remained pending before the chancery court). Whether a judgment is “final” is a matter of substance, not form. See M.R.C.P. 54(b).
¶7. Rule 54(b) of the Mississippi Rules of Civil Procedure provides one exception to the rule that only final judgments are appealable. See Walters, 956 So. 2d at 1053 (¶10). Under Rule 54(b), “the [trial] court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). However, the trial court’s “expressed determination that there is no just reason for delay” must be stated “in a definite, unmistakable manner.” Id., advisory committee notes. In other words, the trial court must expressly “certify” that the
interlocutory ruling should be deemed final and “released for appeal.” Jennings v. McCelleis, 987 So. 2d 1041, 1043 (¶6) (Miss. Ct. App. 2008) (quoting Indiana Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 753 (Miss. 1984)).
¶8. In this case, the trial judge did not make such an express certification. Indeed, the judge did not make any statement to the effect that there was “no just reason for delay” of an appeal. M.R.C.P. 54(b). To the contrary, the judgment granting Glen a divorce expressly stated that the equitable division of the marital estate would be “addressed . . . in a later judgment.” The judgment further stated that the court reserved jurisdiction to address that issue and all other financial matters. Moreover, the court even gave the parties a date for the second day of trial. Therefore, Rule 54(b)’s exception to the final judgment rule does not apply. See Walters, 956 So. 2d at 1052-54 (¶¶5-14) (holding that Rule 54(b) did not apply in the absence of an expressed determination by the trial court that there was no just reason for delay—even though the trial judge stated orally and in a written judgment that he intended to allow an immediate appeal from a “Final Judgment of Divorce”).
¶9. Because the chancery court has not entered a final, appealable judgment in this case, this Court lacks jurisdiction, and this appeal must be dismissed.
Nothing more to add. Keep this in mind the next time you try a bifurcated case.