Appealing from a Consent Judgment

February 10, 2015 § Leave a comment

William Peebles and his wife, Sandra, were divorced in March, 2004. In the divorce, William agreed to pay Sandra’s house payments, but he fell behind in his payments to the tune of $64,000. Sandra sued him for contempt and to collect the arrearage. William countered with various defenses, including that he was entitled to a credit against the house payments in the amount of the Social Security benefits that Sandra had begun drawing based on his contributions.

William sought summary judgment on the issue, which the chancellor denied based on the fact that credit for Social Security was not mentioned in the PSA incorporated into the divorce judgment. Following that ruling, the parties entered into a “consent judgment” in which William conceded that he owed Sandra $54,000, plus some other expenses. The judgment specified that William would have the right ” … to seek an appeal from the … pretrial ruling denying his request for credit …” for the Social Security benefits. William did appeal.

His appeal, however, was not limited to the Social Security issue. He also attempted to raise other issues, including whether his house-payment obligation had been discharged in bankruptcy, an argument that the chancellor had overruled. In Peebles v. Peebles, handed down December 9, 2014, the COA rejected William’s attempt to inject other issues into the appeal. Judge Maxwell, for the court:

¶11. William’s first appellate claim ignores the consent judgment he entered with Sandra and backtracks to his initial suggestion that his house-note obligation was discharged in bankruptcy. We find William’s claim is not only barred but also lacks merit.

A. Consent Judgments Are Binding

¶12. First, William entered into a consent judgment, conceding he indeed owed Sandra the money on the house note. And consent judgments are “given the same force and effect as[] judgments rendered after litigation.” Smith v. Malouf, 826 So. 2d 1256, 1259 (¶10) (Miss. 2002). We do note, however, that while consent judgments are “binding and conclusive, operating as res judicata and an estoppel to the same extent as judgments after contest[,]” there are limited grounds for an appeal from a consent judgment. But none of those exceptions are present here.

B. Appealability of a Consent Judgment

¶13. “Until 1991 there was a specific statutory bar to appealing from a consent judgment.” Sanghi v. Sanghi, 759 So. 2d 1250, 1255 (¶22) (Miss. Ct. App. 2000) (citing Miss. Code Ann. § 11-51-3 (1972) (an appeal may be taken from any judgment that is not “by confession”), amended 1991 Miss. Laws ch. 573, § 79). But “now an appeal can be taken from any judgment other than one by default.” Id. (citing Miss. Code Ann. § 11-51-3 (Supp. 1999)). To survive the bar against appealing consent judgments, the issues on appeal must be akin to those under Rule 60(b)—claims such as fraud, misrepresentation, accident, or mistake. Rushing v. Rushing, 724 So. 2d 911, 915-16 (¶¶19-20) (Miss. 1998). As our supreme court has put it, for a consent judgment to be appealable, “the allegation and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id. at 916 (¶22) (quoting Askew v. Askew, 699 So. 2d 515, 520 (Miss. 1997)).

¶14. From our review here, it is obvious that relitigating the discharge issue is William’s chief concern. William does not contest the validity of the consent judgment; he simply wants to reargue something he ultimately agreed about—the fact that he owed Sandra $54,686.60 on the house note. Had he reserved the right to appeal this issue as he specifically did with his claim he should be credited for Social Security benefits, the bankruptcy issue would be properly before us. But he opted not to preserve it, so we find the bankruptcy-discharge issue is barred.

¶15. Still, while the discharge issue is barred, a look at the merits shows William listed his house-note obligation on his bankruptcy schedules as a “domestic support obligation.” And it is well established that a chapter 7 discharge “does not discharge an individual debtor from any debt . . . for a domestic support obligation[.]” 11 U.S.C. § 523(a)(5) (emphasis added). So even though the issue is barred, we find the chancellor was right that the note obligation was not discharged by William’s chapter 7 bankruptcy.

[The footnotes are omitted].

It would seem, then, that only the after-the-fact issues such as R60 matters would be appropriate for an appeal, and the subject matter of the agreement —  “that which is already settled”  — is off limits to an appeal.

Be careful what you bind your client to in an agreed order. That’s not to say you should eschew settlement attempts or be afraid to enter into a binding settlement. I am only saying that you need to consider carefully exactly what it is your client is getting in return for what he or she is giving up, and it is critical that you get your client to understand it, preferably by confirming it in writing with your client’s acknowledgment.

Clarifying Judgments Clarified

June 24, 2013 § Leave a comment

You may recall Eddie and Fannie Cotton’s first trip to the COA. In Cotton v. Cotton, 44 So.2d 371 (Miss. App. 2010), the court affirmed the chancellor’s equitable distribution in a case where the judge found the marriage void as bigamous. The case is of interest not only for that point, but also because the chancellor did not apply — or even mention — the Ferguson factors in her division. It’s a case you should go back and read when you have time.

Part of that affirmed 2010 division was an award of 40% of Eddie’s retirement from employment with Solae LLC during the void marriage. It seems that Eddie omitted the retirement account on his 8.05 financial statement, mentioning it only in his testimony, so the judge did the best she could do and simply awarded the percentage based on his employment with the company.

The problem with that award, as anyone who has dealt with the backwash of a divorce can tell you, is that no plan administrator will honor a QDRO that does not specifically and accurately identify the plan. So, a judgment that says something like “40% of any retirement plan that Eddie participated in while employed with Solae LLC,” is going to be met with a firm “uh-uh” by the plan administrator, which is exactly what happened here. What to do?

Fannie’s lawyers scurried back to court and asked the judge to “interpret” her prior judgment to provide that the retirement account was with the Bakers and Confectioners Union (B&CU), which was the actual plan in which Eddie participated during his employment with Solae LLC.

The chancellor granted the motion, concluding that the prior judgment had intended to award Fannie 40% of whatever retirement fund Eddie had participated in while employed with Solae LLC, and since Eddie himself had failed to provide the specific information, the court could and should clarify its prior ruling to specify that it pertained to the B&CU account, which was, in fact, the retirement account he had accumulated during his Solae employment.

Eddie appealed, taking the position that the chancellor impermissibly changed and broadened the scope of the original judgment.

In Cotton v. Cotton, handed down December 11, 2012, the COA affirmed, concluding that the trial court’s order ” … is neither an improper reconsideration nor an alteration of the prior judgment … ” and was not an abuse of discretion.

I call this decision to your attention for several points:

  • This case highlights a way you can solve that QDRO dilemma that so many practitioners face when trying to put the divorce judgment in effect. It’s not that uncommon to get that letter from the plan admin that denies your client any relief.
  • It seems that a subpoena duces tecum instanter might just have produced the information that was needed. I believe that I would have authorized it from the bench.
  • I wonder why the accurate account information was not fleshed out in discovery? Remember this: if you come to trial with incomplete information, the chancellor will only have two ways to proceed: (1) stop everything and make you go back and do what you should have done in the first place; or (2) proceed and do the best she can with the faulty record before her. A caveat: before you put the burden on the judge to do your work for you, go back and read the MSSC decision in Collins v. Collins. It might persuade you to go a different route.

The real story here is not so much that chancellors can go back and elucidate their judgments to make them do what they were intended to do, but also that lawyers need to be diligent to foil the opposing party’s efforts to conceal and evade disclosure. If you leave it solely up to the judge, you might be disappointed in the outcome.

CONSTITUTIONALLY UNPROTECTED FATHERS

April 9, 2013 § 2 Comments

If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.

The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.

Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.

Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.

In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.

The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:

¶21.  … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).

¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.

The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.

Several observations:

  • Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
  • Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
  • Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.  

THE EFFECT OF AN APPEAL ON A JUDGMENT

September 11, 2012 § 2 Comments

After Van and Myria Strickland were divorced on October 15, 2010, and after Van had filed an appeal, the chancellor entered an “Order Clarifying Judgment” on December 20, 2010. The order awarded the parties the passive-growth increase in the value of asset accounts that had been divided in equitable distribution and had the effect of adjusting and changing the parties’ respective shares.

In the case of Strickland v. Strickland, decided by the COA August 28, 2012, the court vacated the order, holding that the chancery court lacked jurisdiction to enter the December order. The court said:

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted). “On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment.” Id. (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1348 (Miss. 1989)). As such, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. “When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” Id. (citation omitted). See generally M.R.C.P. 59(e) (“A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”). See also McNeil v. Hester, 753 So. 2d 1057, 1075 (¶68) (Miss. 2000); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 362-63 (¶7) (Miss. Ct. App. 2007).

¶20. Van filed his notice of appeal on November 9, 2010. Myria responded by filing her notice of appeal on November 23, 2010. On December 20, 2010, the chancery court entered an order that altered the judgment of divorce by changing the division of the property regarding the increase in value of the asset accounts to the date of the distribution, rather than the date of the temporary order. Because the chancery court’s December 20, 2010 order impermissibly broadened and amended the previous judgments of the court, subsequent to the filing of Van’s notice of appeal, we find that the December 20, 2010 order must be vacated as null and void. See Corp. Mgmt., 23 So. 3d at 460 (¶13) (“When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” (citation omitted)). The chancery court lacked jurisdiction to enter such an order. See id. We further find that the May 27, 2011 order, which was before the chancery court on the motion of Myria seeking to enforce the December 20, 2010 order, is also null and void.

I read the authority to mean that, after the time for reconsideration has passed under the MRCP, and once jurisdiction has been acquired by the appellate court, the chancery court can take no action to alter, amend, clarify, modify, or even enforce the judgment. I have had modification cases and contempts filed on judgments that were appealed. The authority cited by Judge Carlton in Strickland makes it clear that as long as the appellate court has not disposed of the appeal the trial court has no jurisdiction to entertain those kinds of actions.

So this is something you need to factor in when deciding whether to appeal. Can your client wait two to two-and-a-half years for a modification or to enforce the judgment while judgment wends its way through the appellate courts?

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.      

A NEW WAY TO RENEW A JUDGMENT

October 6, 2010 § Leave a comment

MCA § 15-1-43, has long provided that a judgment is enforceable for seven years from the date of rendition.  The only method to extend the judgment lien beyond seven years was to file another suit to renew the judgment within the seven-year period in the couty where the original judgment was entered or where venue would otherwise be proper.  Lloyd v. Bank of the South, 796 So.2d 985 (Miss. 2001).

The legislature amended MCA § 15-1-43, effective July 1, 2010, to create a more streamlined procedure that eliminates the need for a renewal lawsuit.  H.B. 277.  It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

To renew a judgment under the new procedure, one files a notice with the clerk of the court that rendered the judgment.  The notice should be in substantially the following form:

NOTICE OF RENEWAL OF JUDGMENT OR DECREE

(a)  Notice is given of renewal of judgment that was rendered and filed in this action as follows:

(i)  [Date that the original judgment was filed];

(ii)  [Case number of such judgment];

(iii)  [Judgment was taken against];

(iv)  [Judgment was taken in favor of];

(v)  [Current holder of such judgment];

(vi)  [Current amount owing of such judgment].

(b)  If applicable, that a Notice of Renewal of Judgment or Decree has been previously filed with the clerk of the court on [date].

The clerk enrolls the renewal in the same manner as an original judgment, and the renewal is effective as of the date of filing with the clerk.  The right to file suit to extend a judgment continues unimpaired.

At the time of filing notice, the judgment creditor or attorney must file an affidavit setting out the name and last known post office address of the judgment debtor and judgment creditor.  The clerk shall “promptly” mail a copy of the notice to the judgment debtor at the address provided, and shall make a notation of mailing on the docket.  The notice shall include the name and address of the judgment creditor and attorney, if any.  The judgment creditor may mail a copy and proof of mailing with the clerk.  Lack of mailing by the clerk does not affect the validity of the renewal if the judgment creditor files its own proof of mailing.

The renewed judgment is enforceable for seven years from the date of filing, and may be renewed in successive terms in like manner.

MAKING YOUR JUDGMENT STICK

October 5, 2010 § Leave a comment

So you got your client a judgment for $10,000 lump sum alimony in her divorce.  Pretty good for a 5-year marriage.  You’ve gotten quite a few pats on the back for your good work, and your client was so pleased with your performance that she wrote a check for the balance of her fee the day you handed her a copy of the judgment.  You are so glad to be done with the case that you go and cash the check and take the weekend off in the French Quarter.  

Only problem is that your client calls you on your cell at Pat O’Brien’s complaining that her ex has sold the farm and claims he has spent all of the proceeds.  She says that the farm was his only asset, and wants to know how she is going to collect her $10,000.  You call the closing attorney, who advises you that there were no liens of record, and that the sale was perfectly legitimate. 

Where did you go wrong?

A judgment is not a lien against the real property unless it is recorded in the Circuit Clerk’s office.  Had you gotten an abstract of judgment from the Chancery Clerk, taken it to the Circuit Clerk’s office, and asked that it be recorded, the sale of the farm could not have been closed without the judgment being paid in full.  The unrecorded judgment is not binding notice to the closing lawyer or the purchaser, so they have no liability to your client.

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