October 17, 2018 § 2 Comments
A couple of days ago we visited the COA’s handling of the Arrington v. Arrington case dealing with the necessity to file a judgment with the clerk in order for it to take effect. [Note: The post on Arrington was moved to next month]
There’s an interesting wrinkle in that case having to do with how to make a record of an objection to the irreconcilable differences divorce.
As the COA said in ¶3: “On August 23, 2013, through an attorney, Harold filed a withdrawal of consent to the joint claim for divorce.” Only thing is, there was no Consent as that term is used in the statute. There was merely a joint complaint for divorce. Here’s how Judge Griffis’s opinion addressed it:
¶16. Now, we must determine whether Harold withdrew his consent to the joint complaint for divorce in a timely manner.
¶17. We note that section 93-5-2(3) provides:
If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without
leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto . . . .
(Emphasis added). However, this section applies only when the parties agree to an irreconcilable-differences divorce but are unable to agree upon adequate and sufficient provisions for custody or property rights and consent to allow the court to decide these specific disputed issues. Id.
¶18. Here, the parties agreed to an irreconcilable-differences divorce and incorporated an agreed-upon property settlement. They did not invoke section 93-5-2(3), and there were no issues upon which the parties did not agree. We also find no authority to expand this restriction on the withdrawal of consent outside of section 93-5-2(3). We therefore find that the consent restriction in section 93-5-2(3) does not apply here. Harold was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce.
In other words, what Harold should have done is simply file something to put the case on a contested footing. He could have filed an answer denying the complaint and withdrawing his joinder in that pleading. Or he could have, as I have often seen, filed an objection to a divorce on the ground of irreconcilable differences. By filing a pleading purporting to withdraw consent to the divorce he somewhat confused the issue since there was no consent per MCA 93-5-2(3) that could be withdrawn.
Another point you can take away is that a § 93-5-2 consent may not be withdrawn after the court has commenced any proceeding “pertaining thereto,” including the hearing of any motion or other matter. In a case of waffling clients, I have seen lawyers file a motion with the Consent asking the court to approve and accept it in advance of a full trial on the contested issues, the goal being to eliminate withdrawal or at least to make withdrawal subject to court approval.
October 6, 2014 § Leave a comment
The COA case of Massey v. Massey, handed down September 30, 2014, is a routine case for the most part, but it includes some interesting wrinkles that you might want to note.
Jennifer and Stephen Massey filed a joint complaint for divorce on the sole ground of irreconcilable differences. Later they entered into a written consent that settled a few issues and spelled out issues for adjudication by the court.
When they appeared for trial, they announced that certain of the contested issues had been settled. They agreed to joint legal and physical custody of two of their children, and to legal custody of the third, but physical custody of him, as well as support for all three children, was left for the court to decide. Attorney’s fees were also agreed, but all other contested issues were left to the court.
Following a trial, the court adopted the parties’ agreement, and awarded Stephen custody of one child. He ordered Stephen to pay child support for the children in Jennifer’s custody, but ordered no child support for the child in Stephen’s care (she was to turn 21 within six months of the judgment). The chancellor divided the marital estate so that each party got an equal share, each in excess of $750,000. He awarded no alimony to Jennifer.
Jennifer appealed. The COA affirmed.
- One of the questions that arises often is whether a written consent in an ID divorce may be amended via an announcement on the record, as was done in this case. I have heard the question in my court, and I have heard it among judges at study meetings. The problem is that there are plenty of cases that hew strictly to the line that the consent and any PSA emphatically must be in writing, yet it is quite familiar and common practice for parties to amend their pleadings verbally at trial (e.g., “My client withdraws her claim in her complaint for custody and will proceed only on her claim for visitation, your honor”). It is interesting that no one raised the verbal amendment issue here. I am thinking that the COA has raised that sua sponte in other cases. So, does this case signal that it is okay to make a verbal amendment to a consent at trial? I am doubtful. I think I’ll continue my practice of requiring the lawyers to reduce the agreement to writing and make it part of the record; making it meet the requirements of a codicil is even better.
- This is another of many cases in which the hoary Lauro rule applies: Alimony should be awarded if a spouse is left with a deficit after equitable division. If there is no deficit found by the court, alimony is inappropriate. Here, the chancellor found expressly that Jennifer’s award of around $750,000 would do to eliminate any deficit, and the COA found that to be within the chancellor’s discretion.
- Jennifer tried to argue on appeal that the award of child support was inadequate and erroneous. The COA held that since Jennifer did not raise the issue specifically by way of objection at trial, or in a post-trial motion, she was precluded from raising it on appeal. I find this confusing. Was this not a contested issue at trial? When a contested issue is tried with substantial proof what objection does the party have to make at trial? Object to what? And if the issue is fully developed at a bench trial, where in MRCP 59 does it require that the issue be raised again in a post-trial motion? I think R59 does not require it. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993) [cited in the MRCP Advisory Committee Notes]. This is an issue that I wish the MSSC would address and clarify. If lawyers trying cases to a judge, without a jury, are required in essence to raise every possible issue that might be appealed in a R59 motion, despite the language of the rule, I think it is incumbent on the MSSC to tell lawyers so.
- Jennifer argued that the chancellor erred in not finding that her husband’s payment of $30,000 to settle a sexual harassment claim against him was dissipation of marital assets. The COA did not consider it because she cited no authority. That’s unfortunate for her, because I think there’s a good argument to be made there that it was dissipation. BUT … I think the chancellor was within his discretion to find that it was not, based on the fact that it was a mere settlement, and not payment of a judgment; the settlement could be construed to be protective of the rest of the assets, and not in dissipation of them.
Those are my thoughts that percolate out of this case. Sometimes it’s helpful to read appellate court decisions critically, looking for loopholes in the arguments and reasoning of the courts (trial and appellate). That process stretches your critical-thinking processes, and adds to your ability to represent your clients.
August 20, 2013 § 6 Comments
It’s a familiar occurrence: the parties arrive all lawyered-up for trial; judge grants some time to “talk”; the talking leads to a concensus of sorts, or even to a comprehensive settlement; the lawyers meet with the judge and fill the judge in with an outline of the terms. Let’s stop there.
To that point, the situation can still reach a happy conclusion. The lawyers can retire to a computer and hammer out the necessary agreed judgment, or property settlement agreement, or consent to divorce, or other documents, have them signed by the parties, and present them to the court and be done with it.
Or, as frequently happens, they can make an announcement on the record, confirm their agreement before the judge, who incorporates into a judgment, and go their merry ways.
Merry, that is, until one of the parties changes his or her mind and hires another lawyer to torpedo the erstwhile agreement.
The latter (beginning above with the word”Until”) is what happened in the COA case of Reno v. Reno, decided August 13, 2013.
Randy and Casey Reno appeared for a divorce trial, and settlement talks broke out. The parties announced that they had agreed to consent to divorce on irreconcilable differences. The chancellor heard the parties confirm their agreement that they consented to an irreconcilable differences divorce, and she was pretty clear about the import of what the Renos were doing:
In order for the Court to proceed on the ground of irreconcilable differences, I have to have both of your consent[s] . . . . Normally, the consent is reduced to writing[,] . . . but there’s . . . case law that allows us to take testimony from y’all about your consent[;] then it will be reduce[d] to writing in the form of the divorce decree.
. . . .
If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then – and you understand that once you enter into this consent, you can’t change your mind. You can’t back out. I’m going to proceed on irreconcilable differences . . . .
With the verbal consent in place, the court heard the parties agree that each would keep his or her own personal property, and the judge proceeded to a hearing on the contested issues, which were custody and visitation.
Casey was unhappy with the outcome, which gave Randy custody, and she appealed, raising the sole issue that the consent was invalid because it was not in writing, as required by the statute. The COA reversed, relying on Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss. 1992), which held that a consent, in order to be valid, must meet the three criteria set out in MCA 93-5-2(3):
- It must be in writing, signed personally by both parties; and
- It must state that “the parties voluntarily consent to permit the court to decide” the specific issues on which they cannot agree; and
- It must state “that the parties understand that the decision of the court shall be a binding and lawful judgment.”
Since the consent in this case was not in writing, the COA had no choice but to reverse.
- The chancellor undoubtedly had in mind the COA case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), when she stated that there is case law that allows the judge to take oral testimony about the consent. Bougard was not a consent case. In Bougard, the parties dictated their property settlement agreement into the record, which was approved by the trial court. The COA affirmed, despite the statutory requirement that there be a written propertys settlement agreement in an irreconcilable differences divorce. Bougard, however, is the only case of which I am aware in which our appellate courts have upheld a settlement announcement not reduced to writing. As far as the consent cases are concerned, they are uniformly consistent with Massingill, as far as I can tell.
- This case hammers home a point I made in a previous post that ” … there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid.” The concept of a person’s word being his or her bond is as outmoded in the 21st century as buggy whips (that is, buggy whips used as buggy whips, if you get my drift). I think that outmoded concept of honor is why chancellors are so ready to accept on-the-record settlement announcements, and why they are so loathe to let the parties back out of them. Alas, though, neither the statutes nor the mores of this era are consistent with that approach.
- Lawyers in these parts will tell you how much I dislike settlement announcements. I don’t like them for all the reasons set out above. But I also dislike them because quite often they wound up back in court because something was left out, or there is a disagreement over whet was meant, or somebody misunderstood somebody else. To me, it’s better just to take the time to put it in writing where everyone can see it, and go from there.
May 30, 2013 § 4 Comments
Kenton McNeese filed a pro se appeal raising the issue, among numerous others, whether the consent for an irreconcilable differences that he and his wife, Katye, had executed and presented to the trial court for adjudication was valid or not. He took the position that it was invalid, thereby depriving the chancellor of authority to grant the divorce. His appeal raised two issues for the MSSC to address regarding validity of the consent:
- Whether or not the consent was in compliance with the statute; and
- Whether the chancellor properly overruled Kenton’s motion to “expunge” or withdraw his consent.
In the case of McNeese v. McNeese, handed down April 25, 2013, Justice Coleman, writing for a unanimous court, summed it up about as well as it can be said:
¶13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.
¶14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:
(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. . . .
Miss. Code Ann. § 93-5-2(3) (Rev. 2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So. 2d 1121, 1124 (¶ 9) (Miss. 1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly [FN1] and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.
[FN1] Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss. Code Ann. § 25-33-17 (Rev. 2010).
¶15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. [Fn2] Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.
[Fn2] A consent judgment is a final judgment, more like an agreed order, which “must be approved and signed by counsel for all parties . . . before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.
¶16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev. 2004). See also McDuffie v. McDuffie, 21 So. 3d 685, 689 (¶ 7) (Miss. Ct. App. 2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jernigan v. Young, 61 So. 3d 233, 236 (¶ 14) (Miss. Ct. App. 2011). “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce. . . . What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So. 2d 353, 356 (¶ 11) (Miss. Ct. App. 1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.
It might be a good idea to look over the form you’ve been using for ID divorce consents to make sure it includes all of the required elements. Just because you’ve used it a hundred times does not mean that it complies with the statute.
Why is it important to be in line with the staturte? Well, there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid. You wouldn’t want that to cause the demise of a case you thought had been settled and done.