Judgments | The Better Chancery Practice Blog

FINALLY, THE FINAL WORD ON FINALITY

December 13, 2011 § 7 Comments

It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.

A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).

MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment. Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).

MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.

Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).

MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.

After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.

Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).

UCCR 8.06 ON STEROIDS

October 25, 2011 § 7 Comments

Unless you’ve been practicing law under a rock for the past umpteen years, you are surely aware of the requirements of UCCR 8.06. That’s the rule that mandates filing each party’s name address and telephone number with the chancery clerk, with service on the other party, in every action involving custody of children, and within five days of any change.

Did you know that there is a statutory counterpart to UCCR 8.06 that requires even more detailed information in paternity and child support cases?

MCA § 93-11-65 (5) now provides that:

Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and the state registry, information on that party’s location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer. This information shall be required on entry of an order or within five (5) days of a change of address.

This provision is not limited to DHS actions for support. In my opinion, it applies in all cases where there is a provision for child support, including irreconcilable differences divorces. You should see to it that this is addressed in your property settlement agreements and judgments.

YET MORE ON POST-TRIAL MOTIONS AND APPEALS

October 12, 2011 § 3 Comments

I posted here, here and here about the COA and post-trial motions.

On October 11, 2011, the COA in Aspired Custom Homes, LLC v. Todd and Tina Melton, there is this language by Judge Carlton, at ¶ 11:

While Aspired appeals the judgment of the chancery court questioning the judgment’s substance, we acknowledge the record reflects the chancellor denied a timely filed post-trial motion brought by Aspired pursuant to Rule 59(e) — a motion to alter or amend judgment. See M.R.C.P. 59. Aspired filed a motion pursuant to Rule 59(e) and raised four issues before the chancellor. However, a party is not required to file a post-trial motion in chancery court in order to appeal the chancery court’s judgment. We therefore address the merits of the appeal before us, questioning the substance of the chancellor’s judgment. [Emphasis added]

In a footnote to that paragraph, the opinion stated:

If a party’s motion for reconsideration is served within ten days of the rendition of judgment, the motion falls under Rule 59(e) of the Mississippi Rules of Civil Procedure. Carlisle v. Allen, 40 So. 3d 1252, 1260 (¶33) (Miss. 2010) (citing Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990)). The Mississippi Supreme Court has established that to succeed on a Rule 59(e) motion, “the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004). Case law has also provided that “[a]n appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So. 2d 1256, 1261 (¶9) (Miss. 2001). In this case, the notice of appeal reflects only an appeal by Aspired from the judgment of the chancellor, with no reference to the unsuccessful post-trial motion.

That, in my opinion, is an accurate statement of what Mississippi law has been in chancery bench trials, and I’m glad to see it clearly stated.

So, based on the language above, a post-trial motion is not a prerequisite to an appeal from a chancery bench trial. But the question remains whether a post-trial motion is necessary to preserve particular issues for appeal, as the COA case cited in the prior post would indicate. Here’s some language that may remove all doubt:

“It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial. [Emphasis added] Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).

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Thanks to Thus Blogged Anderson for the Kiddy v. Lipscomb cite .

THE POWER OF NOW FOR THEN

September 28, 2011 § Leave a comment

Unlike mere mortals, chancellors have the power to reach back into the past and take action as effectively as if had actually been done back then. It’s called nunc pro tunc — Latin for now for then — and here is how it works:

“This Court has stated that ‘[n]unc pro tunc signifies now for then, or in other words, a thing is done now, which shall have [the] same legal force and effect as if done at [the] time when it ought to have been done.’ In re D.N.T., 843 So. 2d 690, 697 n.8 (Miss. 2003) (quoting Black’s Law Dictionary 964 (5th ed. 1979)) (emphasis added). This Court has further articulated that

[n]unc pro tunc means ‘now for then’ and when applied to the entry of a legal order or judgment it 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, 963-64 (Miss. 1980) (emphasis added).”

The above language is from the MSSC decision in Irving v. Irving, decided August 18, 2011.

We’ve talked here before about Henderson v. Henderson, another nunc pro tunc case that reached back two years to effectuate a divorce judgment that had erroneously never been entered with the clerk.

Years ago I tried a consent divorce case in Wayne County involving only property issues between an elderly husband and wife. Chancellor Shannon Clark rendered an opinion from the bench at the conclusion of trial and directed me to draft the judgment, which I did the next day and mailed to counsel opposite in Waynesboro. Before the other attorney could approve the judgment and return it to me, my client suddenly died. Judge Clark later signed a judgment nunc pro tunc, and the other side appealed. In White v. Smith, Admrx of Estate of White, 645 So.2d 875, 882 (Miss. 1994), the MSSC upheld the trial judge’s action, quoting a Florida case that held, ” … recordation of a final decree is a procedural and ministerial act, that a decree when recorded is but evidence of judicial action already taken and that a failure to perform the act of recording may be remedied by an order nunc pro tunc.”

I’ll leave it to you to conjure up some situations in which you can ask the chancellor to act now for then to pull your irons out of the fire.

AUTOMATIC MODIFICATION OF CHILD CUSTODY

August 23, 2011 § 2 Comments

You are representing your client in an irreconcilable differences divorce, and the long-awaited PSA has arrived in the mail from counsel opposite. Here are the provisions dealing with custody:

(g) So as to insure a fit and proper environment for the rearing of the minor children, the parties agree that in the event there is a scintilla of evidence of unmarried sexual activity by wife where the minor children are residing or in the vicinity of the minor children, wife shall immediately forfeit and be divested of all custody rights with respect to the minor children, custody of the minor children thereupon automatically vesting in husband, subject only the right of wife to have reasonable visitation with the minor children at reasonable times and places.

(h) In furtherance of the concept of a “home base” hereinabove discussed, the parties agree that the children shall reside in the Columbus, Mississippi area. Wife agrees to give husband sixty (60) days advance written notice of any intended relocation. Unless both parties agree that the children may be removed from the Columbus, Mississippi area to this new location, wife shall be divested of custody of the minor children upon such relocation and custody shall thereupon be vested in husband subject to further orders of the Court. Wife shall have the right to reasonable visitation with the minor children at all reasonable times and places during this period until the matter is finally determined by the Court.

(i) During the portion of the year in which the children reside with wife, wife agrees to give husband advance notice of any trips she plans out of the town of Columbus, Mississippi and further agrees to limit any out of Columbus, Mississippi trips to not more than three nights and to provide husband with information regarding her destination and location so as to afford him a basis to communicate with her if necessary. Furthermore, during such out of town trips, husband, at his option, shall have the right to have custody of the minor children.

It looks pretty much like what your client has told you was her agreement. She and her soon-to-be ex want the children to have some stability, and she wants this divorce over so she can get on with her life. If that’s what her husband wants, she is willing to agree to it just to get this over with.

Subparagraph (g) would effect an immediate change in custody in the event that your client engaged in unmarried sexual activity “where the children are residing” or in their vicinity, and the burden of proof would be a “scintilla of evidence,” a humble standard by any measure.

Subparagraph (h) would create an automatic modification of custody if your client relocates from the Columbus, Mississippi, area.

Subparagraph (i) essentially provides that unless the father gives your client permission to take the children out of town for longer than tree nights, she must give him custody for the duration of such trips.

What is your advice to her?

Check out the case of McManus v. Howard, 569 So.2d 1213 (Miss. 1990). There, the parties had agreed to the very terms cited above, which were approved by the chancellor. Later, the mother sought either a modification or an MRCP 57 declaratory judgment that the agreement was unenforceable as to subparagraphs (h) and (i). It appears that neither party injected subparagraph (g) into the litigation, but one can speculate that it was a tactical decision by counsel to avoid an appearance of wanting to promote or condone inappropriate activity. The MSSC did not explain why it referenced the provision in its opinion.

The chancellor denied modification for the reason that the material change-adverse effect-best interest test had not been met. He denied declaratory judgment on the ground that the parties had contracted for the custodial arrangement, and their contractual agreement should be enforced.

In the MSSC opinion, Justice Blass wrote (at page 1216):

“Being given jurisdiction by Miss.Code Ann. 93-5-24(6) (Supp.1990) and the children being wards of the state, Tighe v. Moore, 246 Miss. 649, 666, 151 So.2d 910, 917 (1963) and there being an ample body of the case law for the guidance of the court, Arnold v. Conwill, 562 So.2d 97, 99 (Miss.1990); Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss.1986), the court simply cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. We hold such an Agreement to be void and contrary to public policy. We have recently considered a similar problem and have reached the same conclusion. Bell v. Bell, No. 89-1108 (Miss. Oct. 3, 1990). Accordingly, we reverse, and grant judgment here for the declaratory judgment as to later sub-paragraphs 2(h) and 2(i). No other matters were submitted to this Court by the appeal.

The Bell case cited by the court found unenforceable an agreement between the parties under which the children were required to live in Tupelo until majority, and the relocation of the custodial parent would trigger an automatic modification of custody. Bell v. Bell, 572 So.2d 841, 845 (Miss. 1990).

The MSSC in McManus held that subparagraphs (h) and (i) above were unenforceable and reversed the chancellor’s ruling. There was no mention of subparagraph (g), because it was not a part of the underlying suit and was not raised on appeal, but the court’s rationale would apply to it as well, in my opinion.

It was my experience as a practitioner that parties occasionally wanted to include similar provisions in their PSA’s. Our chancellors would not approve an agreement that included the language, and I so advised my clients.

A QUESTION OF ATTORNEY’S FEES ON APPEAL

August 17, 2011 § 5 Comments

Ed McDonald filed for divorce from his wife, Cindy. Cindy counterclaimed for separate maintenance. The ultimate result was that the chancellor denied Ed a divorce and granted Cindy separate maintenance.

Ed did not pay as the court ordered, and he filed a motion to terminate the obligation. Cindy responded with a petition to hold Ed in contempt for non-payment of six months of separate maintenance. The chancellor rejected Ed’s plea to terminate the payments, found him in contempt, awarded Cindy a judgment for the arrearage, and ordered Ed to pay Cindy $1,000 in attorney’s fees based on the finding of contempt. In making the attorney fee award, the trial judge stated:

“The finding of contempt in this matter as to the separate maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the inability to pay. Therefore, the Court orders [Ed] to pay $1,000 to [Cindy] as attorney’s fees for his failure to pay the monthly separate maintenance as ordered by this Court.”

Ed appealed both from the denial of termination of separate maintenance, and from the adjudication of contempt. In the case of McDonald v. McDonald, decided August 16, 2011, the COA affirmed the chancellor on the refusal to terminate separate maintenance and the adjudication of contempt.

Cindy, then, was the prevailing party in the appeal, and she asked the COA to award her an attorney’s fee for having to defend the appeal. Indeed, there is a long line of cases holding that the appellate court will award the prevailing party an appeal attorney’s fee in an amount equal to one-half that awarded by the trial judge. See, e.g., Quin v. Quin, 215 So.2d 414, 415 (Miss. 1968); Smith v. Smith, 293 So.2d 466, 469 (Miss. 1974); and Poole vs. Poole, 701 So.2d 813, 819 (Miss. 1997).

Based on the chancellor’s ruling on the attorney’s fee, Cindy would reasonably expect the COA to award her an attorney’s fee in the sum of $500 for prevailing in the appeal.

In this case, though, the COA brushed aside Cindy’s request with this language (at ¶17): “The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt ‘and not on the inability to pay.’ Because precedent dictates that attorney’s fees are based on ‘necessity and not entitlement,’ and the chancellor did not find that attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.”

The opinion cites Monroe v. Monroe, 745 So.2d 249, 253 (Miss. 1999) at ¶ 17, as authority for its statement that “attorney’s fees are based on necessity rather than entitlement.” Monroe is the only case cited by the court. Monroe was a divorce case in which the MSSC reversed and rendered on a finding that Mrs. Monroe had been denied alimony improperly. It was not a contempt case. The court found that Mrs. Monroe was not entitled to attorney’s fees on appeal because she did not prove inability to pay. I’ve posted here before about the necessity to prove inability to pay to support an award of attorney’s fees in non-contempt actions.

The rule is different in contempt actions, however. A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006). It is not even necessary for the McKee factors to be proven in a contempt case. Mixon v. Mixon, 724 So.2d 956, 964 (Miss. App. 1998). Attorney’s fees are properly assessed against a party found to be in contempt, Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993), to compensate the party wronged for having to retain counsel.

In Bounds, the COA spelled out the distinction:

Sam’s argument fails to differentiate awarding attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486 (Miss.2005), the court addressed this issue. The trial court held a mother in contempt for failure to return the children to the father’s custody. Like Sam, the mother contended that the attorney’s fees the court awarded to the father for the contempt action were unreasonable because the court did not use the McKee factors. The general rule in divorce and child custody actions is that appropriate attorney’s fees should be awarded in an amount to secure a competent attorney. Id. at 490(13). However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id. (citing Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss.1995)). “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Elliott, 775 So.2d at 1290(25).

It looks to me like the chancellor in McDonald properly assessed attorney’s fees based on the sanction for contempt, as he was permitted to do under the great weight of authority. The chancellor was not required to find inability to pay. Why, then, was the customary appellate fee disallowed under a standard different than that which applied in the trial court? Ed appealed from the contempt finding and Cindy prevailed on the appeal. Should she not have been entitled to the customary one-half attorney fee award to the prevailing party?

I hope this decision does not mean that in contempt actions parties will have to put on proof of inability to pay purely in anticipation of an appeal, since that finding is not necessary for the trial judge to assess a fee on a finding of contempt. It’s irrational to me for one standard to apply at trial and another on appeal.

Cindy is only out $500 in this case, but what if the fees had been $12,500? Something else to think about as you go about making your trial court record in a contempt case.

PROCESS FAI*L

August 15, 2011 § Leave a comment

What difference does it make whether the other party has the right form of process if he had actual notice?

Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:

Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.

On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.

On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.

The COA reversed, and here are the important points:

MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 16) (Miss. App. 2002).
Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759.
Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).

In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A. The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.

The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.

The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, … [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).

The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.

Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:

Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).

As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.

Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.

I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.

The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.

WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE?

August 11, 2011 § 4 Comments

Here’s a little nightmare scenario for you …

Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …

Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.

Is there a problem?

The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.

Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.

The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.

The result was that the appeal was dismissed as untimely filed.

As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.

I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.

COA SINKS ANOTHER APPEAL FROM A LESS-THAN-FINAL JUDGMENT

July 20, 2011 § 4 Comments

It was only last month that the COA dispatched two appeals to dismissal-land because they were taken from less-than-final judgments. You can click the link to read about Jackson v. Lowe and S.E.B. v. R.E.B. The underlying principle is, you will recall, that an appeal only lies from a final judgment, and if any issues remain unadjudicated and not addressed as required in MRCP 54(b), your appeal will be dismissed.

The COA once again confronted the issue in R.A.S. Jr., K.S., A.S, V.S. and M.S. v. S.S., rendered July 19, 2011. In that case, the appellant, referred to as “Matt,” had filed a Chancery Court modification action seeking to reduce his $6,900 per month child support. His ex, “Anna,” responded by charging him with molesting one of their children. The charges were nol prossed, and Matt countered with a chancery motion for an accounting of the child support. Later, he filed an amended petition asking to “reform” original decree provisions for child support and custody.

The chancellor held a motion hearing and, without hearing any evidence, ruled from the bench that he was going to leave physical custody and legal custody as they were. He stated, “I’m not here today to decide [the modification issue] … I’m not going to address those motions stoday as to whether or not they meet the legal standard.” The judge later entered an order denying Matt’s request for an accounting, reserving ruling on the modification.

Matt filed a motion for a new trial (Note: in chancery this is a motion for rehearing, traditionally referred to as a motion for reconsideration), and Anna filed a motion for payment of certain expenses provided in the original judgment. The judge overruled Matt’s motion and denied Anna’s motion without addressing certain transportation expenses she had requested.

Matt complained on appeal that the chancellor refused to allow him to present evidence on his modification pleading, instead putting off a hearing so that Anna’s parenting could be monitored. A guardian ad litem had been appointed.

In every one of the chancellor’s rulings cited by the COA, it is clear that the judge was not making a final ruling. The COA said at ¶ 20 that

“The chancellor’s orders here were not final. We fully recognize that child-custody decisions are always subject to modification until the children’s emancipation. And no judgment entered is final in the sense of ending the case until that point. However, that the case involves custody modification does not eliminate the requirement that the chancellor enter a final, appealable judgment. Absent proper Rule 54(b) certification or the supreme court’s permission to proceed on an interlocutory appeal, which are both lacking here, piecemeal appeals are not allowed.

The chancellor clearly deferred ruling on contested issues, which he had not revisited when the parties appealed. Because we find the chancellor did not enter a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.”

The court also pointed out that the supreme court has held in Michael v. Michael, 650 S0.2d 469, 471 (Miss. 1995), that parties may not appeal from a temporary order.

From Judge Maxwell’s opinion in this case, it appears that the record was somewhat confused. It may have been confusing to counsel as to exactly what matters were being addressed in which proceedings. I suggest you get a clear understanding with your chancellor either before hearing or when he casts the pleadings at the outset of trial as to what matters will be addressed. If you’re perplexed that the judge won’t address a certain issue at a certain time, try to pin him down on the record as to when, exactly, you can be heard on the issue.

In any event, the COA has once again sent an important message to trial and appellate counsel: If you don’t have a final, appealable judgment, your appeal will be dismissed.

A LESS-THAN-FINAL JUDGMENT

July 6, 2011 § 3 Comments

It sometimes happens that the chancellor grants some of the relief requested, saying in effect, “That’s all I’m going to do,” and directs entry of a final judgment. It happens, for instance, where one party asks for an award of attorney’s fees and the court does not want to grant it, or where one party in a divorce wants the living room furniture that the other party has and the judge leaves things as they are. You can conjure up some similar scenarios.

The question is: when the judge does that, is there a final, appealable judgment?

The COA addressed what is not a final, appealable judgment in two recent decisions handed down the same day.

In Jackson v. Lowe, decided June 28, 2011, the COA answered the question by reference to MRCP 54(b), which states:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the 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. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Jackson, the court held that since the chacellor’s decision did not address several issues and did not certify that it was a final judgment as to the issues adjudicated, it was an interlocutory judgment that was not appealable, and until the parties saw to it that all issues had been addressed, there was no jurisdiction for an appeal.

A similar result was reached in S.E.B. v. R.E.B. decided June 28, 2011, in which the chancellor flatly refused to adjudicate alimony and child support.

What the COA is telling you is that unless the trial court’s judgment addresses every claim, or unless you have a Rule 54(b) certificate from the trial judge, you are going nowhere on appeal until you do.

I posted here about some of the nuances of Rule 54(b), and you might want to take a look at the post again.

I have almost always included a paragraph in my judgments that states to the effect that “The court has considered all other issues and prayers for relief asserted by the parties and finds that they should be denied and no further relief granted.” I do not know whether that will suffice as an adjudication, and after the S.E.B. decision, I’m not so sure; no one has ever raised the issue. Of course, I use that only for miscellaneous issues that do not have trial factors because failure to address applicable trial factors is reversible error. I also have included a Rule 52(b) certificate in appropriate cases.

Moral of the story: If you are not satisfied that the chancellor has met the requirements of Rule 52(b), be sure to file the proper motion for a certificate, and do it timely. If you are outside the 10-day requirement of Rule 59, you might want to file a motion to set the remaining issues for trial. Yes, this will likely steam up your judge, who probably figured your case was concluded, but just smile and show her a copy of Jackson v. Lowe, and maybe everything will be all right.

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