The Better Chancery Practice Blog

Charles Allen and Janet Allen were divorced in 2002, but they continued a relationship and even resumed wearing their wedding rings.  They opened a joint checking account and made plans to move in together.  They spent every weekend together, and Charles even had a private line installed in Janet’s residence so that they could talk with one another whenever they wished.  Janet said “It was like we were never divorced.”  Eventually, they saw where the relationship was headed and decided to set aside the divorce so they could get back together.   

On May 17, 2006, they filed a joint petition in the Chancery Court of Pearl River County to revoke the divorce as provided in § 93-5-31, MCA.  So far, so good.  Only problem is that Charles died June 16, 2006, before the court could hear any testimony on the petition.

The specific code section invoked by the joint petition reads as follows:

The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation. 

The Chancellor quashed the petition nearly a year later on condition that he would allow Janet to file a timely request for reconsideration if she could show sufficient facts of reconciliation.

Janet did file for reconsideration, and the Chancellor found after hearing that she had presented proof sufficient to satisfy the criteria for revocation of the divorce.  He entered a judgment revoking the divorce, and the Administrator of Charles’s estate appealed.   

In Carlisle v. Allen, 2009 WL 1758864 (Miss.Ct.App. June 23, 2009), a case of first impression, the Court of Appeals reversed, holding that, although Janet had produced sufficient evidence to support a finding of reconciliation, the trial court has no authority to reinstate the marriage because of Charles’s death.  The court reasoned that since death of a party to a divorce ends the status of marriage and would even have the effect of nullifying a divorce action, the purpose of the statute, which the court found was “to reunite two formerly married persons as a married couple,” would be thwarted because there “is no status of marriage upon which to operate.”

Janet filed a petition for certiorari, which was granted.

On cert, the Supreme Court reversed the Court of Appeals and reinstated the Chancellor’s decision.  In Carlisle, Adm’r of the Estate of Allen v. Allen, No. 2007-CT-02047-SCT, the court held that Janet had met all of the criteria of the statute, had presented satisfactory evidence in support of it, and that it was not error for the Chancellor to grant the revocation in such a situation, regardless of Charles’s intervening death.  The opinion pointed out that there is nothing in the statute that required both parties to be alive when the revocation is ordered, and that it was error for the Court of Appeals to analogize the action to a divorce action, where the applicable law is not necessarily the same.

There are some procedural disagreements between the majority and the dissenters that hinge on the timeliness of the motion to reconsider and the trial court’s jurisdiction as a result.  That is an issue for another post. 

As a practical matter, this case is mostly of academic interest since petitions for revocation are pretty rare.  I only presented two in 33 years of practice and have had none come before me on the bench.  Interestingly, I did have a case where my client died before the divorce judgment could be signed by the Chancellor, but after the Chancellor had rendered his opinion from the bench.  In that case, White v. Smith, 645 So,2d 875 (Miss. 1994), the Supreme Court upheld Chancellor Shannon Clark’s entry of a Judgment of Divorce nunc pro tunc after the death.

This Allen case raises what I consider to be a couple of valid questions:  Why do we need this statute?  Would we not be better off if it were repealed?

The first question is based on the simple fact that the parties are free to remarry at any time with little bureaucracy, which is in my opinion the preferable manner to effect their reunion.  Why would they prefer to hire an attorney, draft pleadings, set a court date, appear and testify, and await the judge’s ruling?  I am speculating here, but I believe it is reasonable to assume that this statute is an adjunct to the Chancellor’s power to forbid the remarriage of the parties due to adultery (still in the code at § 93-5-25, MCA), and perhaps this statute was a way for parties to get around that injunction.  In any event, I am not aware of any case in my career in practice or on the bench where a Chancellor has entered such an injunction, and certainly not in the 21st century.  What other reason is there for this law to continue in effect?     

My second question stems from the fact that since this statute was enacted, the landmark Ferguson case and its offspring have taken root in our jurisprudence, giving rise to many questions about the accumulation of marital assets between the time that the divorce judgment is entered and the date it is revoked.  Consider, for example, that the husband got title to the former marital residence in the divorce and has made all mortgage payments in the interim.  Is the residence restored to its status as marital property (notwithstanding title)?  And what are the parties’ respective equitable interests in it?  Remarriage would set a clear demarcation as opposed to revocation, which raises more questions than it answers.

Something to think about.