January 8, 2019 § Leave a comment
Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error
It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?
Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:
¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.
Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.
Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:
¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.
¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.
¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.
¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).
¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.
Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.
But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.
January 2, 2019 § Leave a comment
Most chancellors get testy when a party plays coy with financial information that is needed to decide a case. It usually happens in discovery where a party with financial assets gets vague with requests for information about account balances and the like. A recent case illustrates how that kind of tactic can cost a party dearly.
Julia and Steven Dauenhauer consented to a divorce on the ground of irreconcilable differences and left it to the chancellor to distribute the marital estate. Julia had some retirement accounts, but in discovery she did not produce statements and at trial she did not list all of them and their values on her 8.05. When the chancellor included them in the marital estate, Julia first filed a motion to “reconsider,” which was treated as a R60 motion because it was filed later than ten days after entry of the judgment. When she proved to be unsuccessful in that endeavor, she appealed claiming the accounts were separate property.
In the case of Dauenhauer v. Dauenhauer, decided November 13, 2018, the COA affirmed the chancellor’s ruling on the point. Judge Carlton wrote the unanimous opinion:
¶36. Julia next argues that the chancellor erred in classifying the following as marital property: (1) the money she withdrew from her PERS retirement account and (2) the contributions she made to her Empower 401K after the entry of the order for separate maintenance.
¶37. This Court employs a limited standard when reviewing a chancellor’s division and distribution of property in a divorce. Phillips v. Phillips, 904 So. 2d 999, 1001 (¶8) (Miss. 2004). “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. Upon review, we examine the chancellor’s application of the Ferguson factors. Id. In so doing, we do not conduct a new Ferguson analysis; rather, we “review[ ] the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Id.
¶38. Furthermore, “the party arguing to classify an asset as nonmarital property has the burden to demonstrate to the court the asset’s nonmarital character.” Wheat v. Wheat, 37 So. 3d 632, 640 (¶26) (Miss. 2010). The supreme court explained that meeting this burden requires going “beyond a mere demonstration that the asset was acquired prior to marriage.” Id. [My emphasis]
¶39. Julia explains that the $56,484.90 “withdrawals from retirement” listed in the Schedule of Marital Assets represents a PERS retirement account in the amount of $46,732.68 and a Great-West Retirement Services account in the amount of $9,752.22. In his judgment, the chancellor included a footnote explaining that the “total of the funds Julia withdrew from her retirement accounts is also a marital asset subject to equitable distribution.” However, Julia argues that she testified at trial that her PERS retirement was “originally acquired when [she] was divorced” from Steven the first time. Julia admitted at trial that contributions to the account had been made during their second marriage, but she now maintains that a portion of the total value of her PERS retirement account should be considered separate property.
¶40. At trial, the record shows that during cross examination, Steven’s attorney questioned Julia about whether she provided a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Julia responded that she was not requested to produce such a document. Steven’s attorney responded, “Well, ma’am, I definitely requested it in request of production documents, and you didn’t produce them, and I’m going to go through that.” The record shows that on her Rule 8.05 financial declaration, Julia attached a W-2 form indicating the value of the PERS account amounted to $46,732.68 when she cashed it out in 2015.
¶41. Regarding the $17,000 in her Empower 401K account, Julia asserts that the majority of the value of the Empower account constituted separate property. The chancellor’s judgment reflects that he divided the assets in the Empower account equally between the parties. In so doing, the chancellor also provided that “Julia voluntarily contributes approximately twenty percent of her income from West Jefferson [Medical Center] to her 401K retirement account.” Julia asserts that the three trial exhibits, including two of her pay stubs from April 2016, which the chancellor referenced as support for that amount, do not reflect contributions of twenty percent. Rather, Julia argues that her April 2016 pay stubs show that she only contributed fifteen percent of her monthly income to the account. Julia further submits that her contributions made to the account after the order for separate maintenance should be classified as separate property.
¶42. Steven argues, however, that Julia failed to produce a statement for the Empower account, despite being requested to do so in discovery. The trial testimony reflects that Steven’s attorney asked Julia if she had a pension plan. Julia responded, “Yes, I do.” Steven’s attorney asked, “But you didn’t put it on [your Rule 8.05 financial statement]?” Julia answered, “Correct.” Julia testified, however, that she started accumulating funds in
her Empower account in 2014.
¶43. Our review shows that the chancellor set forth the following findings with regard to Julia’s retirement account and Empower account:
Julia voluntarily contributes approximately twenty percent of her income from West Jefferson to her 401K retirement account.
. . . .
Prior to the separation, Julia purchased a home located at 209 Blue Heron Cove, Waveland, MS 39567, as well as a 2015 Mazda. When Julia purchased this home, she used $9,752.22 of her retirement funds from West Jefferson Medical Center to pay off the loan for the Honda Ridgeline. (See Exhibit 14, Page 10). Julia testified that she cashed in additional retirement savings in the amount of $46,732.68 and used these funds to purchase various items and appliances for her new home. (See Exhibit 14, page 8). Through post trial submissions, Julia has detailed how she spent $43,855.23 or this withdrawal.
¶44. The chancellor then performed a Ferguson analysis and found that “no non-marital property” existed. Under the factor of “the income and earning capacity of each party,” the chancellor made the following determination regarding Julia’s retirement accounts:
Both Steven and Julia have advanced degrees and therefore an ability to earn. However, because Steven has stated the desire to return to school to earn a teaching license, and Julia is currently working as a nurse practitioner, Julia’s current earning capacity is much higher than Steven’s. Julia also has the income and funds available to voluntarily contribute twenty percent (20%) of her income from West Jefferson to her retirement. This contribution is significantly more than required, and a much greater than Steven is saving towards his retirement through his PERS account.
¶45. Next, the chancellor set forth a schedule distributing the marital assets. Under Julia’s assets, the chancellor listed the $56,484.90 from the withdrawals from retirement as well as $8,500, which constituted one-half of her Empower account. The chancellor awarded Steven one-half of Julia’s Empower account, amounting to $8,500.
¶46. As stated, Julia bore the “the burden to demonstrate to the court [an] asset’s nonmarital character[,]” which requires going “beyond a mere demonstration that the asset was acquired prior to marriage.” Wheat, 37 So. 3d at 640 (¶26). Julia admitted that she did not produce a statement for her Empower account in discovery, nor did she produce a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Therefore we cannot say that the chancellor abused his discretion in classifying as marital property the money Julia withdrew from her PERS retirement account and the contributions she made to her Empower 401K after the entry of the order for separate maintenance.
So when you leave it up to the judge to make her best guess about the information you didn’t make clear in the record, you get what you get. If that gap in the record comes about from a cat-and-mouse strategy of non-disclosure, it can bite your client in a most sensitive and painful part of the anatomy.
December 5, 2018 § 1 Comment
When Christina and Billy Leblanc appeared for their divorce trial, also at issue was a contempt action that Christina had filed complaining that Billy had failed to pay the mortgage on the former marital residence as directed by the court in a temporary order. On the first day of trial Billy admitted in his testimony that he had not paid it as ordered.
On the second day of trial, however, the parties agreed to a consent to divorce that did not mention the contempt. The chancellor did not include an adjudication of contempt, and Christina appealed alleging several errors, including the non-adjudication of contempt. She contended that the chancellor should have awarded her a separate judgment for the mortgage arrearage.
In Leblanc v. Leblanc, decided October 23, 2018, the COA affirmed on this issue. Judge Wilson wrote for the unanimous court (Irving not participating):
¶69. As discussed above, the chancery court twice ordered Billy to pay the arrearage on the mortgage on the marital home, and Christina filed two contempt motions based on Billy’s failure to do so. Her second motion was still pending when trial began. On the first day of trial, Billy admitted that the mortgage was not current. He claimed that he was unable to pay it. Then, at the beginning of the second day of trial, the parties consented to an irreconcilable differences divorce. The chancery court’s final judgment awarded Christina the marital home, along with the mortgage. However, the court’s judgment did not specifically address Billy’s prior contempt or the arrearage. On appeal, Christina argues that the chancery court erred by not finding Billy in contempt and by not entering a separate judgment in her favor for the mortgage arrearage.
¶70. We conclude that the issue of Billy’s contempt was waived because the parties did not list contempt among the issues to be decided by the court. In an irreconcilable differences divorce, the issues that are to be decided by the court by the consent of the parties must be “specifically set forth.” See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). “The language of section 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.” Myrick v. Myrick, 186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2016) (quoting Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005)) (brackets omitted). Here, the parties agreed that the chancellor would decide issues related to child custody and support, equitable division, alimony, and insurance. Contempt was not mentioned when they consented to an irreconcilable differences divorce. Therefore, we hold that the issue was waived.
¶71. In addition, our general “rule is that a party making a motion must follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.” Anderson v. McRae’s Inc., 931 So. 2d 674, 678 (¶10) (Miss. Ct. App. 2006) (emphasis added; quotation marks omitted). Here, Christina noticed her motion for a hearing on the first day of trial and mentioned the motion at the outset of trial; however, she did not request a ruling on the motion when she subsequently consented to an irreconcilable differences divorce, or at any time thereafter. Therefore, there is no “ruling from the [chancery] court” for this Court to review. Id. Accordingly, we conclude that Christina waived the issue by failing to obtain a ruling.
Okay, I get it that the issue was waived as a contested issue at this trial and for this appeal, but does that mean that Christina can’t ever recover what Billy didn’t pay? Does it mean that she permanently waived collection? Well, here is what Professor Bell said:
“The obligation to pay past-due temporary support survives a final judgment, even though the temporary support is replaced by a permanent support order. A payor was properly held in contempt for failure to make temporary child support, alimony, and mortgage payments totaling $2,900.” [Citing Langdon v. Langdon, 854 So. 2d 485, 496 (Miss. App. 2003). Also citing Baier v. Baier, 897 So. 2d 202, 205 (Miss. App. 2005) for the proposition that temporary arrearages may not be forgiven]. Bell on Mississippi Family Law, 2d Ed., § 14.02.
So it would appear that Christina may get another bite at that crabapple.
I see pleadings raising all sorts of issues and defenses, and motions filed along the way, that are never called up before the court for hearing. You need to heed the court’s warning that failure to bring those up for the court to address will waive them so that they can’t be raised on appeal.
November 19, 2018 § 2 Comments
An endearing and prevalent romantic custom is to bestow a ring on one’s sweetheart. Quite often the ring is an emblem of engagement in the expectation of marriage. When the expectation is not realized, the gift is said to be conditional and remains the property of the donor, as in the Cooley case, which we discussed at this link. When the expectation does ripen into marriage, the ring is a gift to the donee as in the Lomax and Neville cases, which we discussed here.
A recent case presents a scenario somewhere between those two.
During the time that Dr. Christopher Cummins was separated from his wife, he became romantically involved with one of his employees, Leah Jordan (later Goolsby). Although Cummins had not divorced his wife, and never did at any time relevant to this case, he and Jordan began living together, and even became engaged, which Cummins memorialized with a gift of rings. Later, Jordan broke off the engagement and kept the rings. After Jordan filed a paternity suit against him, Cummins counterclaimed for the rings that he claimed were worth $11,435. He asked the court to order that the rings be returned, or that he have a credit for their value against court-ordered child support. He argued Cooley — that the conditional gift was never completed by marriage, and so had to be returned to the donor.
The chancellor ruled that the rings were a completed inter vivos gift because Cummins had never divorced his wife, rendering the condition impossible due to the fact that he could not legally marry Jordan. Cummins appealed.
In Cummins v. Goolsby, decided October 18, 2018, the MSSC affirmed. Justice Maxwell wrote the opinion for a unanimous court (Justice Coleman specially concurring):
¶9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.’” Cooley, 200 So. 3d at 476 (quoting Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982)). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties’ getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley. He claims the third element of a completed inter vivos gift—that the gift was complete and nothing was left to be done—had not been met. So, he was entitled to the return of the rings.
¶10. But this case is not like Cooley.
¶11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternityand to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child’s father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds, 935 So. 2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell, 579 So. 2d 543, 549 (Miss. 1991)). So, even if Dr. Cummins had a right to the rings or to the rings’ value, by no means is he entitled to the ultimate remedy he seeks — a reduction in child support based on the broken engagement.
¶12. Second, and more importantly, unlike the boyfriend in Cooley, Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins’s marriage is significant because he conditioned his gift on something he legally could not do—marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition — or the failure thereof — is what entitles him to the rings.
¶13. “[O]ne of the maxims of equity is, ‘He who comes into equity must come with clean hands.’” Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g., Morgan v. Wright, 133 S.E.2d 341, 343 (Ga. 1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman, 76 A.D.3d 178, 184 (N.Y. App. Div. 2010) (“[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.”).
¶14. Because, unlike the boyfriend in Cooley, Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor’s judgment.
Justice Coleman’s specially concurring opinion, joined in part by Beam, Ishee, and Randolph, points out that the law of promise to marry in Mississippi is governed by contract law, rather than by the law of gifts. It’s worth a read.
A few points:
- With this decision, we now have law covering the most common ring-gift situations: (1) the uncompleted gift conditioned on marriage, Cooley; (2) the gift completed by marriage, Lomax and Neville; and (3) the gift that was intended originally to be conditional, but cannot be completed due to impossibility, Cummins.
- Kudos to the court for invoking the maxims of equity.
- If you’re going to take up with someone else while separated from your spouse, for Pete’s sake don’t get engaged, and by all means don’t get carried away with engagement rings.
October 31, 2018 § Leave a comment
A couple of days ago I posted about the big change in tax treatment of alimony coming after December 31, 2018.
Here are some points brought to my attention that correct and fine-tune that post:
- I said that there must be a judgment pre-dating the demarcation date. Other tax experts believe that a binding agreement for alimony to be treated for taxes as it currently exists will satisfy the law. The key is that the agreement must on its face be binding. To me that means either a PSA or a consent with alimony as an agreed issue presented to the court for approval or some other proceeding to make it binding.
- I also said that modification would result in making the pre-demarcation-date-alimony non-deductible and non-taxable. A more accurate statement is that modification may, in some cases, change the tax treatment. It’s too complicated for me to elaborate on here, but you need to get some competent guidance before jumping into any alimony modification post December 31, 2018.
Those are the tweaks. Here are two of my own observations:
- Don’t expect judges to be familiar with all of the nuances of these changes. Be prepared to offer expert testimony or stipulations that cover these points.
- Get some competent tax advice so that you can properly and accurately advise your clients. That disclaimer in your retainer agreements and PSA’s about tax advice does not relieve you of the obligation to be able to advise your clients about basics such as tax treatment of alimony and the pitfalls of modification because that’s not really tax advice — it’s divorce advice.
Thanks to the lawyer who called this to my attention.
October 29, 2018 § 2 Comments
Effective after December 31, 2018, alimony will no longer be deductible by the payor, and will no longer be income to the payee. That’s per the “Tax Cuts and Jobs Act” passed by Congress earlier this year.
The law refers to “divorce agreements executed” after December 31, 2018, which would seem to indicate that if you have a PSA executed by the parties on December 29, 2018, the payments would maintain their deductible/income character, but at least one tax expert whom I asked said that the law requires a judgment or decree either adjudicating alimony as a contested issue or incorporating an agreement.
Also, any judgment modifying alimony after the cutoff date will cause the alimony to lose its deductible/income character.
So here are some ramifications for Mississippi practitioners:
- If you’ve been dragging out that divorce case and the current alimony treatment is important to your client, you’d better get moving; you’ve only got two months left until the change.
- You need to think twice about modification, especially if you represent the payor. Even a slight modification of alimony after the cutoff date will cause it no longer to be deductible.
- The parties will no longer be able to agree to deductibility or non-deductibility, or taxability or non-taxability. All alimony is non-deductible and non-taxable, no matter what the parties agree.
- It will no longer make any sense to craft hybrid alimony provisions because taxability is no longer a factor.
- The court is required to consider the tax consequences under the Armstrong factors. Keep that in mind as you prepare your witness list. You might want to prepare a stipulation for the court as to taxability of alimony.
- I think this will: (a) make alimony more difficult to negotiate, and (b) have a depressing effect on amounts of alimony awarded and agreed.
- I believe this also applies to separate maintenance, but that’s my opinion.
It’s not too soon to sit down with a tax specialist who can advise you of the consequences of this change. This has drastic strategic consequences for divorce lawyers and their clients.
October 16, 2018 § Leave a comment
We’ve talked about the necessity of filing a judgment with the clerk as required in MRCP 58 and 79(a). It seems to be a fairly ironclad rule.
But there is at least one post-MRCP case in which no judgment was entered following trial, one of the parties died, and the MSSC upheld the chancellor’s nunc pro tunc entry of a divorce for a pre-death date.
Johnnie and Luke White underwent their fourth divorce from each other in 1992. In the course of the trial they agreed to a consent to divorce on the ground of irreconcilable differences that was handwritten, signed by each of them, and filed with the clerk. Following the trial, the chancellor ruled from the bench on the contested issues, directed that the parties be divorced, and ordered Luke’s attorney to draft a judgment. Following the trial, and before the judgment could be entered, Luke died.
Luke’s brother filed a R25 Suggestion of Death and asked to be substituted as a party for the sole purpose of entering a judgment. After hearing both sides the chancellor executed a judgment dating it nunc pro tunc to the date when he had ruled on the contested issues. Johnnie appealed. In the case of White v. Smith, 643 So.2d 875 (Miss. 1994), the MSSC affirmed. (Note that Smith was the administratrix of Luke’s estate, and she was substituted for Luke’s brother as a party in the appeal).
Justice Pittman wrote the unanimous opinion for the court, which is excerpted here in part, beginning at page 880:
“Courts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937). Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment, it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act. Thrash v. Thrash, 385 So.2d 961, 963 (Miss.1980), quoting Becker v. King, 307 So.2d 855, 858-59 (Fl.App.1975).
Johnnie relies on Pittman v. Pittman, 375 So.2d 415 (Miss.1979), in support of the arguments raised in issues I, III and IV. The facts in Pittman reflect that Ella Polk Pittman filed a petition for a divorce and requested that she be granted a divorce on the grounds of habitual cruel and inhuman treatment. The hearing was held on September 26, 1978, and the final decree was not entered until October 27, 1978. Some three weeks after receiving the letter, a decree was prepared and mailed to the chancellor. This decree was signed by the chancellor and filed on October 27, 1978. Petitioner died in the interim on October 17, 1978.
This Court held, on the facts of the case, that the death of the party prior to the entering of the decree had rendered moot the question on divorce, stating that “all issues in the case were incidental to the request for a divorce and the contest thereon, and the entire cause died with the complainant.” Pittman, 375 So.2d at 417.
Unlike the facts in Pittman, in the present case, there was a formal adjudication of the issues in writing and signed by the chancellor, prior to the death of one of the parties.
Johnnie also cites Griffith, Mississippi Chancery Practice § 620, at 667 (1950), which states in part:
A valid decree cannot be rendered in favor of two persons, one of whom at the time is dead. Such a decree is void. And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit-although the interlocutory decree was rendered while he was alive.
The general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce. Pittman v. Pittman, 375 So.2d 415 (Miss.1979).
The case of Thrash v. Thrash, 385 So.2d 961 (Miss.1980), is directly analogous to the case sub judice. In Thrash, the wife petitioned the court for a divorce on the ground of habitual cruel and inhuman treatment. The husband answered and filed a cross-bill in which he prayed for a divorce upon similar grounds. The case was fully tried and submitted to the chancellor for final decision. The chancellor took the matter under advisement and on March 31, 1978, determined all issues on the merits and rendered his decision by written opinion. The opinion was signed and filed with the clerk on April 1, 1978. The chancellor awarded the husband a divorce upon the grounds set forth in the cross-bill. A decree was drafted, approved by both solicitors, and forwarded to the chancellor for signature. This decree was duly received by the chancellor on April 8, 1978, signed by him on that same date, but dated April 10, 1978. The husband was killed on April 9, 1978.
On May 16, 1978, Pearl Marie Thrash filed a suggestion of death and motion to dismiss. The motion was based on the fact that the appellee had died prior to the decree’s being filed. The chancellor dismissed the motion and ordered the decree of divorce theretofore signed by the chancellor, to be entered nunc pro tunc, the date it was signed by the first chancellor, April 8, 1978.
The appellant in Thrash claimed that the decree signed by the chancellor on April 8, 1978, and dated April 10, 1978, was without effect and a nullity because appellee died on April 9, 1978, before the decree was filed with the clerk.
The majority opinion in Thrash relied on Section 11-7-25, Mississippi Code Annotated (1972), which in pertinent part provides:
Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living….
Applying § 11-7-25, this Court determined that “in a case such as this, where the case has been fully tried and finally decided on its merits and nothing remains to be done except the entry of a decree, the decree would follow as if both parties were living.” Thrash, 385 So.2d at 962.
We have concluded that, in the absence of some special circumstances such as would cause a miscarriage of justice by so doing, the provisions of that section [§ 11-7-25] apply in a case such as this, the death of the husband having occurred long after the formal decision of all issues by the trier of facts. To hold otherwise, we think, would work a manifest miscarriage of justice.
Thrash, 385 So.2d at 964.
In the present case, from a technical standpoint, Luther died while married, since his death was prior to the entry of the decree. However, the record clearly indicates that all submitted issues had been litigated and ruled upon by the chancellor on November 2, 1992. Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.
In addition to the reliance on § 11-7-25, the Thrash opinion quoted extensively from 104 A.L.R. 654, 664 (1936):
The general rule, so far as a general rule may be deduced from the few cases falling within this subdivision, is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. [citations omitted] But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date. [citations omitted]
Id. at 962-63.
Because the chancellor both fully considered all issues raised by the parties and rendered his opinion prior to Luther White’s death, the order entering judgment of divorce nunc pro tunc was not manifestly in error, and as such, does not create reversible error.
Although the case can be construed to apply narrowly to its peculiar facts, it’s hard to get around the basic principle announced in it that, ” … all submitted issues had been litigated and ruled upon by the chancellor … Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.”
It’s not easy to square that general principle with the current strict application of R58 and 79. This is the MSSC’s word on the subject, though, and it is still good law.
Another post dealing with White and entry of judgments is at this link.
September 11, 2018 § 1 Comment
Many family lawyers complete their entire careers without filing an action to revoke a divorce. Most, like I, have handled a couple.
You can find the provision to revoke in MCA § 93-5-31. Here it is in its entirety:
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
So, all that is required is a joint petition and evidence satisfactory to the court that the parties have reconciled. I emphasized “required” because the language of the statute leaves a lot to the imagination.
- What does “under such regulations and restrictions it may deem proper to impose” mean?
- What evidence is “satisfactory?
- Is a record required?
Most chancellors nowadays have enough to do without concocting arcane regulations and restrictions. I think it’s safe to assume that you can file that joint petition, set it for hearing, and put your parties on the stand for brief testimony to the effect that they have resumed living together and want to be restored to all of the benefits and emoluments of marriage. But that might not be enough for your favorite chancellor. You should inquire about the kind of evidence the judge wants to hear. Satisfactory evidence is in the eye and judgment of the beholder, and the appellate courts will give the judge’s ruling “great deference.”
What about a record? The case of Carlisle v. Allen, 40 So.3d 1265 (Miss. 2009) is illustrative. In that case, the parties had filed their joint application, but the husband died before it could be presented. The wife went ahead with the petition, over the estate’s objection. Here is how the MSSC described the evidence that the chancellor found to be satisfactory:
¶ 4. Janet filed for reconsideration and testified to the following facts regarding her reconciliation with Charles: the two had maintained their relationship after the divorce; Charles and Janet had continued to talk and go out together; Charles had a private telephone line put in Janet’s house so he could call her; the two had spent every weekend together from March 2006 until Charles’s death in June 2006; Charles had called her multiple times a day while she was recovering from a hip injury she incurred following Hurricane Katrina; Charles had plans to sell his house and move back into the former marital home with Janet; and the couple had opened a joint banking account.
¶ 5. Janet also testified that the reason the couple initially had divorced was that Janet had become sick during the marriage and Janet’s mother, Mary Davis, had encouraged her to get divorced. Janet testified that Charles did not come into the courtroom the day they were divorced. Regarding their relationship after the divorce, Janet stated, “we were always close. It was like we were never really divorced.” Once they filed the petition to revoke the divorce, the couple both began wearing their wedding rings.
¶ 6. On cross-examination, Janet testified that Charles had paid the bills at his house, and—other than the bill for the phone line Charles had placed in Janet’s home—Davis had paid the bills at her house. After Charles’s death, his body was found at his home by his housekeeper, Beverly Slaydon. Janet was at her home and was informed of his death by Slaydon.
¶ 7. Davis testified that the coroner sent Charles’s personal effects to Davis. She said she supposed the coroner did this because of her daughter’s relationship with Charles.
¶ 8. Slaydon testified that she had met Janet while working for Charles in his home. Slaydon testified that she often had talked to Janet on the phone, but Charles would not give her Janet’s phone number because it was “just for him and [Janet].” She testified that Charles was on the phone with Janet constantly, that Janet regularly had spent weekends at Charles’s house, and Charles and Janet would hold hands, talk, and laugh. In her opinion, Charles and Janet loved each other very much. Finally, Slaydon testified that the only other woman she ever saw at Charles’s home was Janet’s personal care provider, Patricia Beard.
¶ 9. Beard cared for Janet as she recovered from a hip injury and, during that time, drove Charles and Janet to Poplarville to file the petition to revoke their divorce. She saw Charles sign the joint application and take it to the courthouse. She testified to seeing Charles three to four times per week, and said that Charles would bring Janet lunch, flowers, or presents. She stated that Charles and Janet would spend hours together on the phone. In her opinion, Charles and Janet had a very loving and affectionate relationship. It was her understanding that the couple had wanted to have their divorce revoked and that Charles had planned to return to the marital home. She stated, “[Charles] never felt that they were divorced. He wanted to be with her. He told me that she was his life partner.” Finally, Beard testified that Charles had asked her to find his wedding band, and she had seen him wearing it.
¶ 10. Carlisle testified that he was a close friend of Charles’s, and he had known him since 1969. He stated that he had prepared the application to revoke the divorce, but that it was his understanding that Charles “never intended to marry [Janet] or set aside the divorce.” He further testified that he previously had prepared four or five applications to revoke the divorce for Charles, but Charles had thrown those applications away. Carlisle thought Charles felt cheated out of the marital home in the divorce, and was using the revocation of divorce to “recover what he thought was rightfully his.”
¶ 11. Carlisle further testified that he regularly had visited Charles and that he never had noticed signs of anyone staying with him. When he visited Janet after Charles’s death, Carlisle said the first thing Janet told him was that she was not going to pay for the funeral arrangements. As a result, he made a number of the funeral arrangements personally. However, Janet testified that Carlisle volunteered to make the funeral arrangements and refused to allow her to pay for the service. Finally, Carlisle testified that Charles had a personal relationship with a female attorney before and after Hurricane Katrina. While he did not know the woman’s name, it was someone other than Janet.
That’s pretty detailed, but considering that it became contested it was helpful for the wife that it was so detailed.
A highlight of Carlisle is that death does not abate the action.
The effect of a divorce is to return both spouses to single status. Revocation of the divorce does not have the result of returning the parties to marital status during the time that the divorce judgment was in effect. “Nothing in this statute authorizes the chancellor to find that this statute revokes the prior decree to such an extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. The purpose of the statute is to encourage the reconciliation of broken marriages, not to place the parties in the position of unknowingly giving offense to the marital status once it has been restored.” Devereaux v. Devereaux, 493 So.2d 1310, 1313 (Miss. 1986). Revocation, then, is prospective in its application even though the divorce judgment is revoked.
March 21, 2018 § 1 Comment
As far back as the days when dinosaurs roamed the Jackson prairie, the rule in Mississippi was that divorce venue as spelled out in MCA 93-5-11 conferred subject matter jurisdiction, and, thus, could not be waived or conferred by consent.
Fast forward to the days when Wal-Mart roamed the area, and the rule changed. In Lewis v. Pagel, decided last June, the MSSC reversed ancient precedent and held that subject-matter jurisdiction was conferred not by statute, but by the Mississippi Constitution. The statute, the court held, governs venue and controls the court’s exercise of personal jurisdiction over the defendant.
I posted about Lewis at this link. I urged readers to “stay tuned” to see how the court’s ruling plays out.
Well, as it turns out, we now have a case that applies Lewis. In Ridgeway v. Hooker, decided February 15, 2018, Patrick Ridgeway appealed from the chancery court’s denial of his R60(b)(6) motion for relief from judgment based on his argument that the trial court lacked subject matter jurisdiction to grant a divorce between him and his ex-wife, Louise Hooker. Here is how Justice Kitchens’s opinion addressed Patrick’s argument:
¶21. Mississippi Code Section 93-5-2(1) provides:
Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.
Miss. Code Ann. § 93-5-2(1) (Rev. 2013). Mississippi Rule of Civil Procedure 60(b)(4) allows a court to “relieve a party . . . from a final judgment” if “the judgment is void . . . .” Ridgeway argues that the chancery court lacked subject-matter and personal jurisdiction because the complaint he filed was not a joint complaint, he never served the complaint on Hooker, and Hooker never entered an appearance by written waiver.
¶22. “Subject matter jurisdiction is the power of the court to hear and determine cases in the general class to which the particular case belongs.” In re Estate of Kelly, 951 So. 2d 543, 548 (Miss. 2007) (citing Case v. Case, 246 Miss. 750, 758, 150 So. 2d 148 (1963)). “Subject matter jurisdiction is conveyed by the Mississippi Constitution.” Lewis v. Pagel, 2017 WL 2377690, *6 (Miss. June 1, 2017). “Section 159 of the Mississippi Constitution vests subject matter jurisdiction in the chancery courts over divorce proceedings.” Id. at *6 (citing Miss.
Const. art. 6, § 159 (“The chancery court shall have full jurisdiction in the following matters and cases, viz.: . . . (b) Divorce and alimony . . . .”)).
¶23. It is true, as Ridgeway argues, that “the defense of lack of subject matter jurisdiction cannot be waived.” Stuart v. Univ. of Miss. Med. Ctr., 21 So. 3d 544, 548-49 (Miss. 2009) (citing Capron v. Van Noorden, 2 Cranch 126, 6 U.S. 126, 127, 2 L. Ed. 229 (1804) (“[I]t was the duty of the Court to see that [it] had jurisdiction, for the consent of the parties could not give it.”)). But this Court recently overruled cases holding that the venue requirements of Mississippi Code Section 93-5-11 (Rev. 2013) [Fn 1] “could not be waived as it vested subject matter jurisdiction over divorce actions in the chancery court.” Lewis, 2017 WL 2377690, at *6. This Court overruled “these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts.” Id. Instead, the Court held that, while the Mississippi Constitution confers subject-matter jurisdiction,“Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant,” and the “Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper.” Id.
[Fn 1] Mississippi Code Section 93-5-11 governs proper venue for divorce actions:
All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.
A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides. Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.
Miss. Code Ann. § 93-5-11 (Rev. 2013).
¶24. The chancery court has jurisdiction of divorce cases, including irreconcilable differences divorces. See Miss. Const. art. 6, § 159. No case cited by Ridgeway stands for the proposition that the requirements of Section 93-5-2(1), if not strictly complied with, deprive the chancery court of subject-matter jurisdiction of an irreconcilable differences divorce. As in Lewis, Section 93-5-2(1) limits the chancery court’s exercise of personal jurisdiction over the defendant, requiring a joint complaint and either personal service on the defendant or the defendant’s “entry of appearance by written waiver of process.” Miss. Code Ann. § 93-5-2(1).
¶25. Personal jurisdiction “is an individual right that can be waived.” Pekin Ins. Co. v. Hinton, 192 So. 3d 966, 971 (Miss. 2016) (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105, 72 L. Ed. 2d 492 (1982)). More specifically, “[o]ne waives process and service . . . upon making a general appearance.” Isom v. Jernigan, 840 So. 2d 104, 107 (Miss. 2003). This Court held, in a case in which the defendant had “appeared by counsel and filed a plea to the jurisdiction of the court, which he later withdrew, and also filed cross-interrogatories to appellant in the taking of her deposition,” that “personal appearance by a defendant in a cause gives the court jurisdiction of his person as completely as if he had been personally served with process within this state.” Clay v. Clay, 134 Miss. 658, 99 So. 818, 819 (1924). The Mississippi Court of Appeals has held that, while actual service of process had not been issued, the signature of
the defendant and his attorney “under the caption, ‘Read, Agreed, and Approved’” constituted the defendant’s having made “a legal appearance in the matter.” James v. McMullen, 733 So. 2d 358, 360 (Miss. Ct. App. 1999).
¶26. Our Mississippi Rules of Civil Procedure also contemplate waiver in this circumstance: “A defense of lack of jurisdiction over the person, . . . insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), [Fn 2] or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof . . . .” Miss. R. Civ. P. 12(h)(1). Ridgeway makes the statement in his brief that, “[a]ll know that where the [Irreconcilable Divorce Act] and, here, Rule 12 conflict, that the IDA governs.” But the converse is true. See Newell v. State, 308 So. 2d 71 (Miss. 1975) (Article 6, Section 144, of the Mississippi Constitution, which states that the State’s “‘judicial power . . . shall be vested in a Supreme Court and other courts as are provided for in this constitution.’ . . leaves no room for a division of authority between the judiciary and the legislature as to the power to
promulgate rules necessary to accomplish the judiciary’s constitutional purpose.”).
[Fn 2] Mississippi Rule of Civil Procedure 12(g) provides that “[a] party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. . . .” Miss. R. Civ. P. 12(g).
¶27. Here, Ridgeway did not comply with Section 93-5-2(1) in filing a joint complaint, in serving the complaint on Hooker, or in obtaining Hooker’s appearance by written waiver. But Hooker never objected to a lack of jurisdiction, to insufficiency of process, or to insufficiency of service of process. She participated in discovery. She initialed every page of the agreement, signed the agreement, and signed the Judgment of Divorce – Irreconcilable Differences. Hooker’s voluntary appearance obviated the necessity of service of process and she consented to the chancery court’s jurisdiction. By failing to raise the defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process, Hooker waived those defenses pursuant to Rule 12(h)(1).
¶28. It was Ridgeway’s failure to comply with Section 93-5-2(1) which created the alleged jurisdictional defect. As the chancellor correctly observed, Ridgeway cannot complain now of an error of his own creation. This Court has held, an “‘[a]ppellant has no standing to seek
redress from [an] alleged error of his own creation.’” Caston v. State, 823 So. 2d 473, 494-95 (Miss. 2002) (quoting Evans v. State, 547 So. 2d 38, 40 (Miss. 1989)).
¶29. In Kolikas v. Kolikas, 821 So. 2d 874, 876 (Miss. Ct. App. 2002), the husband filed a complaint for divorce in Marshall County, Mississippi, but failed to provide notice to his nonresident wife. The chancery court granted the divorce to the husband, and the Mississippi
Court of Appeals reversed and remanded, holding that “[t]he chancery court had not acquired personal jurisdiction over Ms. Kolikas due to lack of proper service of process based on the Mississippi Rules of Civil Procedure . . . .” Id. at 879-80. The appeals court held that “Mr.
Kolikas, in consultation with his attorney, chose what actions to take in pursuit of divorce” and that “[a]s such, it was his obligation, not that of Ms. Kolikas, to ensure that his actions complied with the appropriate statutes and court rules.” Id. at 879. The court continued: “He did not do so, and cannot place the blame for this failure on Ms. Kolikas.” Id. Similarly, Ridgeway cannot place the blame on Hooker for his own failure to comply with the appropriate statutes and court rules now that doing so, if he succeeded, would inure to his benefit.
¶30. Ridgeway relies on the case of Alexander v. Alexander, 493 So. 2d 978 (Miss. 1986), in support of his argument that “a divorce under the [Irreconcilable Differences Act] was void without some form of personal service or written waiver.” But in that case this Court held “the chancery court exceeded its authority in granting a divorce on the ground of irreconcilable differences” because there had been “no written agreement of the parties regarding their property rights as required by the statute.” Alexander, 493 So. 2d at 980. See Gallaspy v. Gallaspy, 459 So. 2d 283, 287 (Miss. 1987) (Robertson, J., specially concurring) (“The chancery court has no authority to grant a divorce on the ground of irreconcilable differences unless the parties have reached agreement on all financial matters.”). Here, unlike in Alexander, the parties reached a “written agreement for the custody and maintenance of [the] children of [the] marriage and for the settlement of any property rights between the parties . . . .” in accordance with Section 93-5-2(2).
¶31. Accordingly, because the chancellor had subject-matter jurisdiction, because Hooker waived any objection to the exercise of personal jurisdiction, and because Ridgeway lacks standing to complain of an error of his own creation, we affirm.
Lots of nutritional value to digest here. We’ll explore it in greater detail in a future post. For now, rest easy in the understanding that personal jurisdiction, along with all of its ramifications, is what venue now is all about in Mississippi divorce.