Bifurcation and the Appeal

April 3, 2019 § Leave a comment

It’s becoming more and more common that contested divorce trials are bifurcated so that the grounds are tried separately from the issues of equitable distribution, alimony, etc. Under this practice, the grounds are tried first. If no divorce is granted, that’s the end of that. If, on the other hand, the court finds that the grounds are proven, then the court retains jurisdiction to determine property division and other such issues at a later date. The advantages are manifold, chiefly that one does not have to invest the time and money to develop evidence relating to property unless and until a divorce is granted.

That’s what was done in the divorce case of Mary and Glen Montgomery. The court bifurcated the case, and a hearing was held on the grounds for divorce. Following the hearing, the chancellor found that Glen had proven HCIT, and granted the divorce. The judge did commence a hearing on the remaining issues, which involved property only, but the hearing could not be concluded, and it was recessed to a date four months later. The court entered a judgment on the day of the hearing granting Glen the divorce and stating that “Matters of equitable division [would] be addressed in a later judgment.” The judgment also recited that “This is a final judgment on the grounds for divorce only. The Court hereby reserves jurisdiction …” over all of the remaining financial issues. Mary, who had represented herself in the proceedings, filed a timely pro se appeal.

In Montgomery v. Montgomery, decided March 5, 2019, the COA dismissed the appeal for lack of jurisdiction. Judge Jack Wilson wrote for the court:

¶5. A fuller recitation of the facts of the case is unnecessary because we lack jurisdiction. See Walters v. Walters, 956 So. 2d 1050, 1051 (¶2) (Miss. Ct. App. 2007). “Though the issue has not been raised by the parties, this Court is required to note its own lack of jurisdiction.” Id. at 1053 (¶8). “Generally, only final judgments are appealable.” Id. (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)). “A final, appealable, judgment is one that ‘adjudicates the merits of the controversy[,] . . . settles all issues as to all the parties[,]’ and requires no further action by the lower court.” Id. (brackets omitted) (quoting Banks v. City Finance Co., 825 So. 2d 642, 645 (¶9) (Miss. 2002)).

¶6. “A judgment granting a fault-based divorce is a non-final order if issues attendant to the fault-based divorce, such as property division, remain before the lower court.” Id. at (¶9). That is precisely the situation here. The chancery court’s judgment granting a divorce expressly stated that the court reserved jurisdiction to divide the marital estate and resolve all other financial matters related to the divorce. Therefore, the judgment granting a divorce “was not a final judgment from which an appeal could be taken.” Id.; accord, e.g., M.W.F. v. D.D.F., 926 So. 2d 897, 898-900 (¶¶3-6) (Miss. 2006) (holding that a “judgment of divorce” granting a divorce was not final because it did not resolve issues of property
division, alimony, child custody, and child support); Ory v. Ory, 936 So. 2d 405, 408 (¶3) & n.1 (Miss. Ct. App. 2006) (explaining that a “judgment of divorce” was not final because the chancery court reserved the division of the marital assets for a later date). The judgment granting a divorce was not final even though it was labeled as a “final” judgment. Walters, 956 So. 2d at 1052-54 (¶¶5-7, 9, 11-12) (holding that a “Final Judgment of Divorce” was not a final, appealable judgment because the equitable division of the marital estate remained pending before the chancery court). Whether a judgment is “final” is a matter of substance, not form. See M.R.C.P. 54(b).

¶7. Rule 54(b) of the Mississippi Rules of Civil Procedure provides one exception to the rule that only final judgments are appealable. See Walters, 956 So. 2d at 1053 (¶10). Under Rule 54(b), “the [trial] 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.” M.R.C.P. 54(b). However, the trial court’s “expressed determination that there is no just reason for delay” must be stated “in a definite, unmistakable manner.” Id., advisory committee notes. In other words, the trial court must expressly “certify” that the
interlocutory ruling should be deemed final and “released for appeal.” Jennings v. McCelleis, 987 So. 2d 1041, 1043 (¶6) (Miss. Ct. App. 2008) (quoting Indiana Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 753 (Miss. 1984)).

¶8. In this case, the trial judge did not make such an express certification. Indeed, the judge did not make any statement to the effect that there was “no just reason for delay” of an appeal. M.R.C.P. 54(b). To the contrary, the judgment granting Glen a divorce expressly stated that the equitable division of the marital estate would be “addressed . . . in a later judgment.” The judgment further stated that the court reserved jurisdiction to address that issue and all other financial matters. Moreover, the court even gave the parties a date for the second day of trial. Therefore, Rule 54(b)’s exception to the final judgment rule does not apply. See Walters, 956 So. 2d at 1052-54 (¶¶5-14) (holding that Rule 54(b) did not apply in the absence of an expressed determination by the trial court that there was no just reason for delay—even though the trial judge stated orally and in a written judgment that he intended to allow an immediate appeal from a “Final Judgment of Divorce”).

¶9. Because the chancery court has not entered a final, appealable judgment in this case, this Court lacks jurisdiction, and this appeal must be dismissed.

Nothing more to add. Keep this in mind the next time you try a bifurcated case.

 

When a Judgment Isn’t a Judgment

September 13, 2017 § 3 Comments

If a chancellor finally adjudicates a case with an instrument entitled “Order,” is that a final, appealable judgment?

Check out MRCP 58:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which finally adjudicates the claim as to all parties and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled … [my emphasis]

That language came into play in the recent COA case, Bray, et al. v. Wooten, et al. handed down August 22, 2017.

In that case, on May 12, 2014, the chancellor rendered a final ruling following a hearing, and entitled it “Opinion and Order.” The order was filed the same day in the office of the chancery clerk. Later, on July 11, 2014, a document entitled “Final Judgment,” that had been drafted by one of the attorneys and signed by all counsel, was erroneously presented to the other chancellor in the district. He signed it that day, no doubt not taking time to study it in detail because it was signed off on by all counsel, and it was entered by the clerk on July 15, 2014. A motion for new trial was filed within ten days of entry of the July judgment, and was overruled ruled by the original chancellor in January, 2015. The appeal was filed within thirty days of the chancellor’s January, 2015, ruling, which came eight months after the May, 2014, final order. Here’s what the COA said about it:

 ¶17. We begin with the jurisdictional issues. [One of the appellants] argues that the Bray’s notice of appeal was untimely. It claims that the final judgment was Chancellor Kilgore’s Order and Opinion dated May 12, 2014. Thus, since the Bray’s notice of appeal was not filed until February 10, 2015, it was almost seven months late, and this appeal should be dismissed.

¶18. “[W]e review questions of law, such as jurisdiction, utilizing a de novo standard of review.” Weeks v. State, 139 So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013) (citing Whetstone v. State, 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013)). Mississippi Power argues that Chancellor Kilgore’s January 14, 2015 order stated that his final order was the May 12, 2014 order. Thus, Mississippi Power contends that Bray did not timely perfect the appeal. Bray counters that Mississippi Power did not join Wooten’s motion for summary judgment or move separately for summary judgment, meaning the chancellor’s judgment was not final. We address both of these arguments.

¶19. “A final, appealable, judgment is one that adjudicates the merits of the controversy and settles all the issues as to all the parties and requires no further action by the lower court.” Jennings v. McCelleis, 987 So. 2d 1041, 1042 (¶4) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “Generally, only final judgments are appealable.” Walters, 956 So. 2d at 1053 (¶8) (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).

¶20. Mississippi Rule of Civil Procedure 58 provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

In his January 14, 2015 “Opinion and Order,” Chancellor Kilgore ruled:

This order was filed in the office of the Chancery Clerk on May 12, 2014. Although this judgment was styled “Opinion and Order” and was clearly intended to be a final resolution to the action, counsel for Wooten acknowledged that he drafted a document entitled “Final Judgment”’ and mistakenly submitted same to the other Chancery Judge in the district, who signed this order on the 11th day of July, 2014.

¶21. The chancellor’s May 12, 2014 order was entitled “Opinion and Order.” It did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgement [sic] be titled “Final Judgment” in order to be considered one. A further analysis through Mississippi Rule of Civil Procedure 79(a) does not support the chancellor’s ruling.

¶22. Therefore, we find that the chancellor’s May 12, 2014 Opinion and Order was not a final, appealable judgment, and it did not have the force and finality of a judgment. The fact that the parties’ attorneys prepared and signed a “Final Judgment” supports our decision. Had it been submitted to the correct chancellor, there would be no argument that the notice of appeal was untimely. Regardless, the earliest possible appealable “final judgment” in this case was the Final Judgment that was signed on July 11, and entered on July 15, 2014. The motion for a new trial was filed on July 25, 2014, which was within ten days as required by Mississippi Rule of Civil Procedure 59(b). Because the notice of appeal was filed within thirty days of the chancellor’s January 14, 2015 “Opinion and Order,” we find no merit to this issue.

If the COA is trying to say that the labelling of the May ruling worked prejudice on the appellant that was compounded by his submission of the “Final Judgment” to the wrong judge, okay. That makes sense under R 58, which specifically says that mislabelling of a final judgment is only fatal to its finality if it creates a prejudice to a party.

But the COA’s language at ¶21 is too sweeping to me when it says, “[The May Order] did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgment be titled “Final Judgment” in order to be considered one.” On the contrary, under R 58, the chancellor could have tiled it “Laundry List,” and, if it finally adjudicated all claims as to all parties, it would be a final, appealable judgment if no one could show prejudice. The language of the opinion, which may be quoted as authority, can be taken to mean something contrary to the express language of the rule.

The wrinkle here was the submission to and signing of counsel’s “Final Judgment” by a busy chancellor who was likely interrupted in other matters to accommodate the request. Had the document been submitted to the proper chancellor, I believe he would have declined to sign it on the basis that he had already issued a final ruling in the case. He said as much in his January, 2015, ruling on the R 59 motion.

 

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.

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