divorce | The Better Chancery Practice Blog

MISSISSIPPI’S DIVORCE RATE AND THE CURRENT STATUTORY SCHEME

August 29, 2011 § 4 Comments

The Clarion Ledger reported on August 25, 2011, that Mississippi’s divorce rates are among the highest in the nation. You can read the article here. The findings come from the Census Bureau’s “Marital Events of Americans: 2009,” which was released this week. The article did not explain why the conclusions are based on data two years old.

Key points of the report:

Mississippi’s divorce rates for men and women are among the highest in the nation, while its marriage rates rank in the bottom half.
Mississippi had the sixth highest divorce rate among women and the 11th highest for men.
Even in the South, which recorded the highest divorce rates (the Northeast had the lowest), Mississippi’s numbers exceeded at least seven other Southern states’.
Calculating “marital events” per 1,000 men or women ages 15 and older, the rates for Mississippi were 12.5 for women, compared to 9.7 for the nation; and 11.1 for men, also above the national average of 9.2.
The marriage rate for Mississippi women was slightly less than the national average: 17.3, compared to 17.6, for a No. 32 ranking.
The marriage rate for Mississippi men edged out the national average: 19.3, compared to 19.1, but was only the 29th highest.
Although the South had the second-highest marriage rates of any region, Mississippi’s numbers were some of the lowest among its neighbors.
The study explains the variations in rates between men and women this way: Men remarry more than women do, so their marriage rates are higher.
Women tend to live longer than men and tend to marry older men, so widowhood rates are higher for them than rates men.

No doubt the economy is exacerbating these numbers. Anyone who has done much domestic legal work can tell you that financial issues play a predominant role in marital dissolutions.

It’s not easy to get a divorce in Mississippi unless both parties agree on how to settle every issue, including the knotty issues of custody, support, division of property and alimony. Our current system gives rise to and even encourages a strategy in which one party holds the divorce hostage until the other comes to terms, a phenomenon that some lawyers refer to as “divorce blackmail” or “economic blackmail.” I have heard for years that there are legislators who have blocked reform of our archaic divorce statutes because they don’t want divorce to be “too easy.” This data is evidence that the existing statutory constraints on divorce have been singularly ineffective in accomplishing that goal.

I think it’s time for us to consider a change in our statutory scheme for divorce. Deborah Bell’s suggestion is that we amend our statutes to provide that when parties have lived separate and apart for a year or more either may obtain a divorce on the ground of irreconcilable differences, with some temporary relief. That seems sensible to me. It would avoid precipitous and impetuous actions, and would recognize that there is no sense in perpetuating dead relationships. It would also reduce, and hopefully eliminate, the economic coercion that so often intrudes into the divorce process under our current law.

THE DISAPPEARANCE OF MARRIAGE

July 7, 2011 § 1 Comment

In its issue of June 25, 2011, The Economist offers some arresting insights into the state of marriage in our nation that bear reflection by lawyers and judges who deal with family issues. Some of the article’s points:

Married couples, for the first time, now make up less than half (45%) of all households.
In every state the numbers of unmarried couples, childless households and single-person households are growing faster than those comprised of married people with children, according to the 2010 census. Married couples with children comprised 43% of households in 1950; they now account for just 20%.
Traditional marriage has evolved over the past 50 years from a near-universal rite to a luxury for the educated and affluent. In 1960, only four percentage points separated the wedded ways of college and high-school graduates (76% versus 72%). The gap has since widened to 16 percentage points, according to the Pew Research Center. A Census Bureau analysis released this spring found that brides are significantly more likely to have a college degree than they were in the mid-1990s.
The divorce rate has been declining as the marriage rate has been declining. The National Marriage Project at the University of Virginia in Charlottesville has studied the phenomena and concluded that both declines are due to the fact that marriages are becoming more and more selective. The project also found that divorce rates for couples with college degrees are only a third as high as for those with a high-school education.
Americans with a high-school diploma or less (who account for 58% of the population) tell researchers they would like to marry, but do not believe they can afford it. Instead, they raise children out of wedlock.
Only 6% of children born to college-educated mothers were born outside marriage, according to the National Marriage Project. That compares with 44% of babies born to mothers whose education ended with high school. “Less marriage means less income and more poverty,” reckons Isabel Sawhill, a senior fellow at the Brookings Institution. She and other researchers have linked as much as half of the income inequality in America to changes in family composition: single-parent families (mostly those with a high-school degree or less) are getting poorer while married couples (with educations and dual incomes) are increasingly well-off. “This is a striking gap that is not well understood by the public,” she says.

There are implications here that reach far beyond mere economic considerations. Are we witnessing the degeneration of the American Middle Class, with its credal optimism grounded in family, economic opportunity, improvement, education and hard work? The American mantra at least since the 1930’s has been that the next generation will be better off than this one, and so on and on to infinity; the data suggests that principle is dead or dying.

Single parents have less income at their disposal than do married couples living together. Single mothers often live at or near poverty level. Children raised in poverty or near poverty have fewer opportunities to better themselves, and are more likely to pass their accustomed way of life on to their children.

The negative impact on children of being fatherless has been well documented.

The sociology behind these developments is beyond the scope of this blog. It’s important, however, for us to be aware of the forces that affect the lives of those who pass through our courts.

FIVE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 15, 2011 § 5 Comments

I’ve had these suggestions on the stockpile for a little while, waiting for an opportune time to post them. Considering Randy Wallace’s post about a less-than-perfect PSA yesterday, I thought now was a good time to float these. I’ll have more later.

If you don’t address allocation of the tax exemptions for the children as dependents, the IRS takes the position that it remains with the custodial parent. If the non-custodial parent will get the exemption, or it will be split, you should include language that the parties agree that they will promptly complete and timely execute and deliver IRS Form 8332 in order to give effect to the provision. That form is the one that the IRS requires to claim the exemption.
Stick with the traditional terms. The IRS understands the terms periodic alimony, lump sum alimony, rehabilitative periodic alimony, and child support. If you try to disguise those terms as spousal support or family/spousal support, or family maintenance, or something similar, you are likely sending your client off onto a collision course with the IRS. William Wright, an attorney in Jackson, told of a case he had where opposing counsel insisted on applying the term family support to a substantial payment that William’s doctor-client was having to pay each month. William complied, and his client later took the position with IRS that the payments met all the requirements for alimony, so that he should be able to deduct it, and it should be alimony to the recipient. IRS agreed, costing the recipient a whopping tax bill, and no doubt improving William’s standing in his client’s estimation. Had the payments been allocated between child support, which is not taxable, and alimony, which is, the result would have been far different for the recipient spouse.
If the other party is not represented, have you made it clear in the agreement which party you do represent, and have you added language to the effect that the other party acknowledges that you have not given him or her any legal advice?
Name the children in the agreement. It affects them directly. I have read agreements that refer only to “the minor children,” without identifying them, or stating their ages or birthdates, or even how many there are.
Have you bothered to read the agreement? Does it make any sense? Here’s an actual sentence from a property settlement agreement I was presented: “Husband to have his title and car, and wife hers. Each to pay and hold harmless.” I think I know what that means. But that doesn’t make it an enforceable contract.

A POTPOURRI OF POINTS

April 21, 2011 § 2 Comments

Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use. Such is Jernigan v. Young, handed down by the COA on April 19, 2011.

Samuel Jernigan and his wife Mae Bell were married in 1997. Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed. He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve. Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him. There was no writing evidencing the alleged agreement.

In 1998, Mae Bell conveyed the property to her daughter Amy. It is not disclosed in the record whether Samuel was aware of the transaction.

In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences. They proceeded pro se using fill-in-the-blank forms. In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”

Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside. He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated. The case sat idle for seven years until Amy filed for summary judgment. The chancellor granted summary judgment, which the COA affirmed.

Here are the nuggets from Judge Griffis’ opinion:

“[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
Relief under MRCP 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences. MCA § 93-5-24(4). In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce. St. Germain at 417-418. Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error. Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
An inter vivos deed of gift need not be supported by separate consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999). “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.” Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void. The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).

And the most important point of all: You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.

FIVE MORE TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

March 14, 2011 § 9 Comments

I posted here ten tips for more effective financial statements.

Here are a handful more to use in your quest for financial statement perfection:

Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”
Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused catergory like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.
Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, andd retirement contributions.
Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.

Of all the documents you admit into evidence at trial, the 8.05 is the one that the judge will study the closest and spend the most time poring over. Make it a workhorse for your case.

PAY ATTENTION TO JURISDICTION AND VENUE FOR DIVORCE

February 15, 2011 § Leave a comment

Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:

That the parties were married to each other (subject matter jurisdiction);
That the parties are properly before the court by process and notice (personal jurisdiction);
That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce.

These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.

If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer.

All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned. In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.

Remember that your pleadings are not evidence. Just because you pled it does not put it into the record. If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.

ANOTHER NAIL IN THE GOODWILL COFFIN

February 8, 2011 § 2 Comments

“Goodwill” is the term used in accounting to describe the “prudent value” of a business over and above that attributable to the value of its assets, such as its reputation with customers and the value of its brand. An example would be the value that Coca Cola’s planet-wide brand recognition adds to the company’s value over and above the value of its assets.

Ever since the landmark decision in Singley v. Singley, 846 So.2d 1004 (Miss. 2002), in which the supreme court reversed the court of appeals and held that goodwill is not to be considered in business valuations for divorce, the courts have wrestled with the breadth of that decision. Singley, which involved a dental practice (in Meridian), accurately reflects the way professional practices are valued by valuation experts, who consider that the value of a professional practice depends heavily on the participation in it of its principal, so that it has no goodwill. The question lingered, however, as to how the court would apply the no-goodwill concept in other business valuations.

It is beyond the scope of this post to analyze Singley’s progeny, the most notable of which are Watson v. Watson, 882 So.2d 95 (Miss. 2004), and Yelverton v. Yelverton, 961 So.2d 19 (Miss. 2007). If you’re going to handle any divorce cases involving a busines, you will have to acquaint yourself with those decisions.

This post address the latest pronouncement on goodwill, which comes in the case of Lewis v. Lewis, handed down by the supreme court on February 3, 2011.

Lewis, which was before the court on certiorari from the court of appeals, involved valuation of a business enterprise jointly owned by the divorcing husband and wife to develop residential real estate. The court of appeals had reversed and remanded for the chancellor to correct errors in the valuation of the business. On cert, the supreme court, by Justice Randolph, upheld the court of appeals’ reversal and remand in part, but reversed the court of appeals to add that the trial court was precluded from considering goodwill in its analysis of the valuation.

In a cogent dissent, Justice Kitchens pointed out that Singley and the cases following it had correctly appled the exclusion of goodwill to the professional practices involved in those cases. The business in Lewis, however, was not a professional practice. Kitchens urged the court to recognize that Singley should be limited to solo professional practices or businesses that are closely analogous.

Justice Randolph referred sympathetically to Justice Kitchens’ dissent, pointing out that he had raised similar concerns in his own dissent in Watson to no avail. He pointed out that, if Singley lacked clarity on the point, the court’s decisions in Watson and Yelverton laid aside any doubt, and that goodwill is not to be considered. He went on to say that “Stare decisis demands this result.” Waller, Carlson and Graves joined Randolph in the opinion. Lamar and Chandler concurred. Only Kitchens dissented. Pierce did not participate.

Our appellate courts have not been presented with a business valuation involving nationally or even regionally recognized business entities based in Mississippi on a par with companies such as Viking, or Mississippi Chemical, or Structural Steel or Yates Construction. In such a case, it would be difficult to understand how the court could overlook “enterprise goodwill” as opposed to the “personal goodwill” in the precedent to this point. Yet our case law now is that any form of goodwill is to be ignored in valuing businesses in divorces.

TRANSFER OR DISMISS?

December 8, 2010 § 5 Comments

It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county. See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973). Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays. The action must be brough exclusively in the county specified. Where venue is exclusive, it is jurisdictional.

Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007. The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died. The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore. The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional. In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer. In the absence of jurisdiction, his action was void and not merely voidable. Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes.

The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” MRCP 82(d) reads, in part:

“When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as if originally filed therein … “

Justice Easley’s opinion makes no mention of the amendment.

From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties. This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper. The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq. I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements.

So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?

In the absence of any definitive guidance from the appellate courts, here is my interpretation:

If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred. It must be dismissed and refiled.
If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.

Some observations based on the above:

Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.

An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action. A Rule 65 action may be transferred.

Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it. The divorce statutes include an exclusive venue provision. Under Boles, an action filed in the wrong venue in an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss. The court lacks subject matter jurisdiction. Price v. Price, 32 So.2d 124 (Miss. 1947). Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable. Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome? If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.

[I hope this is a helpful starting point for Frankie and colleagues at MC Law]

IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS

September 13, 2010 § 2 Comments

We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife. Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway. Consider:

In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings. In that case, the husband and wife were divorced based on a consent. Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered. The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.

The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby. The reversal apparently did not go down well with the Court of Appeals, however. In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case. Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”

Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings. But why invite scrutiny? It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed. Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.

The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun. Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed. The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery. Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun. The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the 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.” It was not error in the circumstances for the court to refuse to grant leave to withdraw.

Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it? In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint. The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce. Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss. In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences. Wife appealed, and the Court of Appeals reversed.

If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level. If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.

A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.

Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk. Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP. In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion. In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did. Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground. The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission. Thus, husband’s pleading had no effect on the ultimate outcome.

Where Am I?