The Retirement Time-Bomb

April 30, 2019 § 1 Comment

Many, many divorces include either provisions in PSA’s or adjudications that divide retirement benefits to begin 10, 20, or even more years in the future, long after the time for appeal has run.

What happens when the underlying assumptions upon which that PSA or adjudication is based are changed over time or prove to be inaccurate or untrue?

Carolyn Hall was granted a divorce from Gary Hall on the ground of adultery in 2006. She was awarded alimony, and, as part of the property division, Gary was ordered to pay her: $23,976.23 from his 401(k) plan; $2,976.13 from his stock ownership plan; and $600 per month from his pension if he retired at normal age (based on a projected benefit of $5,212 per month, reflecting the plan’s increase during the parties’ 10-year marriage).

In 2007, Gary’s employer froze his pension benefits, but Gary did not file any action to seek modification. In 2016, Gary accepted an early retirement offer, causing him to retire at age 62 rather than the normal retirement age of 65.

Gary filed a petition for modification in February, 2017, claiming that the freezing of his benefits was a material change in circumstances that reduced his retirement benefits, and asked to eliminate the payment to Carolyn entirely. Perhaps recognizing that property division is unmodifiable (East v. East, 493 So.2d 927, 931 (Miss. 1986)), Gary argued at hearing that he was actually seeking relief from the divorce judgment pursuant to MRCP 60(b)(5) and (6). The chancellor granted Carolyn’s motion and dismissed Gary’s case. Gary appealed.

In Hall v. Hall, decided March 19, 2019, the COA affirmed.

¶13. Gary’s petition does not mention that it was filed under Mississippi Rules of Civil Procedure 60(b)(5) and (6). However, during the hearing on August 2, 2017, as well as within his brief to this court, Gary argued that he is entitled to relief pursuant to Rules 60(b)(5) and (6) and he is also entitled to equitable relief. Since this issue was raised with the chancery court we will address the Rule 60(b) arguments made by Gary.

¶14. Mississippi Rules of Civil Procedure 60(b)(5) and (6) provide:

(b) Mistakes; inadvertence; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons:

. . . .

(5) the judgment has been satisfied, released, or discharged, or a prior judgment otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. . . .

The supreme court follows the following criteria for determining Rule 60(b) motions:

(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits-the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

M.A.S. v. Miss. Dep’t of Human Servs., 842 So. 2d 527, 530 (¶16) (Miss. 2003). See also Carpenter v. Berry, 58 So. 3d 1158, 1159 (¶18) (Miss. 2011); M.R.C.P. 60(b), advisory
committee’s note.

¶15. Our court previously held in [In re Dissolution of Marriage of De St.] Germain[, 977 So.2d 412 (Miss. Ct. App. 2008)]  that a court did not err when dismissing a
motion brought under Rule 60(b) where the appellant waited five years to set aside a divorce judgment:

Mississippi Rule of Civil Procedure 60(b)(5) [states that] “it is no longer equitable that the judgment should have prospective application”[], [and] the catch-all provision under Mississippi Rule of Civil Procedure 60(b)(6) [provides for] “any other reason justifying relief from the judgment[.]”[] One who proceeds under either Rules 60(b)(5) or 60(b)(6) must do so “within a reasonable time.” M.R.C.P. 60(b). The chancellor did not specifically state that Brenda failed to file her motion “within a reasonable time,” but his ruling implies as much. We cannot find that the chancellor abused his discretion. Brenda filed her motion approximately five years after the chancellor entered the divorce judgment. The allegations raised within Brenda’s motion could have been submitted much earlier than five years after the judgment of divorce. Accordingly, we affirm the chancellor’s decision to grant Robert’s motion to dismiss.

Germain, 977 So. 2d at 416 (¶10).

¶16. Rule 60(b) reads in pertinent part that relief must be sought “within a reasonable time.” Additionally, the supreme court has held “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances . . . .” Entergy Miss. Inc. v. Richardson, 134 So. 3d 287, 291 (¶10) (Miss. 2014). Here, Gary has not demonstrated any exceptional circumstances.

¶17. Further, Rule 60(b) motions are not to be used as a substitute for appeal. M.A.S., 842 So. 2d at 530 (¶16). Gary never appealed the original judgment of divorce or its retirement provisions. However, Gary has now filed a petition approximately ten years later challenging the retirement provisions of the divorce judgment. Moreover, during the hearing on August 2, 2017, Gary testified that his employer, Standex International Corporation, notified him that his retirement plan was frozen in 2007 and at least twice a year thereafter [Fn omitted] … [here the court quoted excerpts from the trial transcript in which Gary essentially admitted that he could have filed a court action much earlier than he did].

¶18. Gary’s petition could and should have been submitted much earlier than ten years after the memorandum opinion and divorce judgment. Gary knew or should have known in 2007 that his retirement plan was frozen in 2007 and that his retirement benefits would most likely not be $5,200 per month as projected. Gary failed to timely file his petition under Rule 60. In view of that, we affirm the court’s decision to dismiss Gary’s petition.

This case highlights the difficult position that litigants find themselves in when the assumptions upon which the equitable division change or prove to be untrue. If you’re negotiating how to divide your client’s retirement, it would be better to cast it as alimony, which is modifiable. If that doesn’t fly, try to negotiate a percentage rather than a fixed sum. If the case is being adjudicated, be sure to develop your client’s position that any such award should be alimony, and why, and that any award should be as a percentage.

Whatever strategy you employ to minimize risk to your client (and you), it’s important to keep in mind that these retirement provisions are ticking away in your client’s life, far beyond the time limit to appeal, and remember: property division is not modifiable.

Which Post-Trial Motion You Choose Can Make all the Difference

February 25, 2014 § 3 Comments

James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.

On April 16, 2012, Loftin filed a public records request with the school district.

The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.

Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.

On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.

In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:

¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).

¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).

¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).

¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.


  • A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
  • A R60 motion does not stop the running of the appeal deadline.
  • Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
  • If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
  • Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.

Can You Ask for Rehearing, or to Alter or Amend a Judgment, Before There is a Judgment?

August 1, 2013 § 3 Comments

It’s fairly common in this court in a complicated case for me to issue an opinion in a case and direct that one of the attorneys prepare a judgment corresponding with it. The opinion is is issued on one date, and the judgment, as a result, is entered perhaps two weeks later.

It’s also fairly common for a lawyer, once the opinion has been issued, to file an MRCP 59 motion for rehearing in the interval between issuance of the opinion and entry of the judgment.

It does make a difference when you file your post-trial motion. A motion filed within 10 days of entry of the judgment is treated as a R59 motion, and one filed later than 10 days is treated as a R60 motion. City of Jackson v. Jackson Oaks Limited Partnership, 792 So.2d 983, 985 (Miss. 2001). Since the subject matter that may be addressed under each rule is markedly different, you can see that it makes quite a difference when your motion is filed.

So how is the court to treat your motion if you file it even before a judgment is entered? Is your motion a nullity?

The COA addressed the issue in Street v. Street, 936 So.2d 1002 (Miss. App. 2006), where the court stated:

¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.

¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).

¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.

 Street was cited in the later case of Gary v. Gary, 84 So.3d 836 (Miss. App. 2012):

¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).

Thanks to attorney David L. Calder of the Child Advocacy Clinic at the University of Mississippi School of Law


June 3, 2013 § Leave a comment

Here’s the scenario … You are unhappy with the judge’s ruling in the divorce, and so is your client. The judgment was entered 7 days ago, and you and your client agree that neither a post-trial motion nor an appeal were included in the fee you charged to this point. Your client promised to bring you another few hundred dollars to file an appropriate post-trial motion. She understands that a R59 motion will toll the time for appeal, giving her additional time to marshal her assets for an appeal, if necessary. She also understands that the R59 motion must be filed within ten days of the date of the judgment. But time is running out and you haven’t heard back from her. You call opposing counsel, who is quite accommodating and suggests you just send an agreed order extending the time to file. You want 30 days? No problem. He’ll sign.

Pondering your impending dilemma, you arrive at several options:

  1. You could send that agreed judgment extending the time to file a R59 motion. You could get it to the judge at least by the tenth day, getting you in under the wire.
  2. Or, you could go ahead without your client’s participation, and without compensation, and file that R59 motion anyway.
  3. Or, you could just let the ten days go by, and file a R60 motion after then, if you get paid.
  4. Or, you could just not file a post-trial motion, and let the client pay for an appeal only.
  5. Or you could do nothing, and let the sorry so and so just rot in the sun because you weren’t paid.

Let’s look at these one by one:

  1. The agreed order. Before you do this read R59. I’ll wait. [Humming Tom Petty’s You Don’t Know What It’s Like to be Me to myself]. Done? What did you find? Is there any provision to enlarge the time? Not specifically, you say, but it’s not precluded by the language of R59. True, but read on in the Comment, where it says, “The ten-day period may not be enlarged. MRCP 6(b)(2).” R6(b)(2) states that the court, ” … may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.” So that accommodating counsel opposite may really be a Br’er Fox luring you to your doom.
  2. Go ahead on your own. This is the option I would elect. Filing the motion gives your client maximum protection. All R59 relief is on the table, and the time for appeal is extended. If your client changes her mind, you can always dismiss the motion. What about the fact that the filing was not explicitly authorized by your client? You should have no culpability if your action is in your client’s best interest. And as for pay, you can settle that later. Your client’s best interest comes first.
  3. R60 motion instead of R59. Not the best option. R60 does not stop the 30-day appeal clock from running. The scope of R60 is quite different from R59.
  4. No post-trial motion. At first blush, not an entirely unacceptable choice. A post-trial motion is not a prerequisite to an appeal in chancery. One drawback, though, is that if no R59 motion is filed the appeal deadline continues to run unabated. Another drawback is that a R59 motion may alert the judge to some flaw in his or her decision that she could correct, saving your client the considerable expense of an appeal. And, a more subtle consideration is that R59 allows you to bring something to the attention of the trial judge that you may not have objected to or made your record on at trial, and which would thereby be barred on appeal if you did not give the trial judge a chance to rule on it before your appeal.
  5. Rot in the sun. Are you serious?

The confluence of entry of a judgment, deadlines for post-trial motions, and deadline for appeal create a perilous passage fraught with shoals and cross-currents that can cause you and your client great damage. Watch the clock and chart a course that will ensure both of you the greatest possible protection.


May 29, 2013 § 1 Comment

The MSSC case McNeese v. McNeese, decided April 25, 2013, is one that addresses a dizzying variety of points. But I want to focus on the particular aspect of the post-trial motions filed by both parties.

By way of background, the case arose after Kenton and Katye McNeese entered into a consent to divorce on the sole ground of irreconcilable differences, reserving for adjudication the issues of custody, visitation, support, equitable distribution, and alimony. After the judge rendered a judgment on September 2, 1011, mostly in Katye’s favor, she timely filed an MRCP 59 motion complaining that Kenton had failed to disclose certain items in his financial disclosures. Kenton neither responded nor filed his own R59 or 60 motion.

Following a hearing on Katye’s motion, the court entered an order on October 12, 2011, ruling on Katye’s motion, followed on the same day by an amended opinion and judgment clarifying the original opinion. And that is when all proverbial hell broke loose.

Kenton fired his attorney and, on the day following entry of the amended judgment, filed pro se “Motion to Reconsider, Motion for New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings.” His motion(s) were filed 31 days after entry of the original judgment.

[Reconsideration, or Rehearing?]

The chancellor, in a display of saintly forebearance that one would be unlikely to experience with this judge, patiently allowed Kenton to present his argument and even evidence, the bulk of which was an attempt to show how the judge was wrong in his original ruling. The chancellor denied Kenton’s motion, Kenton filed a pro se appeal, and the MSSC took 23 pages to arrive at the word, “Affirmed.”

Let’s stop right there. Here are a couple of questions I have about what happened:

  • Kenton’s motion was an attack on the trial judge’s original ruling, essentially asking him to “reconsider” what he had done, or, in the parlance of the rule, for a “rehearing.” Those are R59 issues, that were required to be asserted within ten days of entry of the judgment, but he did not file his motion until 31 days after entry of the judgment. So why was he allowed to raise those points at that late date, and again on appeal? The amended judgment only clarified the original judgment, and apparently did not add anything substantive. Even if it had, however, I don’t think as a matter of law that entry of the amended judgment opened that door back for him, for the reasons I will state below.    
  • In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments. So how was Kenton able to get away with it in his case?
  • Kenton’s motion, since it was filed more than 10 days after entry of the original judgment, was properly a R60 motion. It did raise a single, valid R60 issue, namely the existence of newly-discovered evidence. The chancellor did allow him to proffer the allegedly newly-discovered evidence, which the judge ruled to be insignificant, and the MSSC affirmed. All of the other issues raised by Kenton were outside the scope of R60. I would have rejected them as untimely, and I hope I would have been affirmed.

These may appear to be quibbling points, but litigants, pro se and represented alike, are entitled to a final conclusion to their litigation travail. Untimely and insubstantial post-trial motions delay that finality and inject issues into the appeal that waste time and resources of the appellate courts to address and resolve.


November 29, 2012 § Leave a comment

A chancellor has the power to impose conditions that may seem “just and proper under the circumstances,” regardless whether any party demanded such relief. Miss. State Highway Commission v. Spencer, 233 Miss. 155, 101 So.2d 499, 504-05 (1958).

The source of this power is apparent in several of the maxims of equity:

  • Equity will not suffer a wrong without a remedy.
  • Equity delights to do complete justice and not by halves.
  • Equity acts specifically and not by way of compensation.

The proper focus of a chancery court remedy, then, should be to fix the underlying problem, completely and not in part.

In three recent COA cases, the court upheld chancellors’ rulings where the trial judge went beyond the pleadings to fashion a remedy designed to fix the underlying problem.

In Goolsby v. Crane, decided October 23, 2012, and discussed in a previous post, the parties were before the court on the mother’s petition to modify to increase child support, and the father’s counterclaim for custody. After hearing all of the testimony, particularly that of the children, the chancellor found that the then-existing visitation schedule was not working, and he modified the visitation schedule. No one had asked for that particular relief, but the COA affirmed on the basis that there was substantial evidence to support the judge’s action.

The case of Finch v. Finch, handed down October 2, 2012, which was the subject of a previous post here, arose from post-divorce contempt and modification procedures. The ex-husband pled that the ex-wife’s alimony should be terminated because she had misled him about joint debts when he agreed to a property settlement agreement, and he now found himself saddled with considerable debt. The chancellor took it a step further and found that the ex-wife had committed a fraud on the court, justifying termination of her alimony. The ex-wife appealed, copmplaining that the ex-husband had failed properly to plead fraud (see Rogers v. Rogers, decided August 1, 2012, and posted about here). The COA affirmed, finding that there was a substantial basis to support the chancellor’s decision, and pointing out anyway that the mention of the words “falsely represented” in the ex-husband’s petition was enough notice that the issue was in play. The court also pointed out that the chancellor has the power under MRCP 60(b) on her own motion to address fraud.

In Scott v. Scott, decided October 30, 2012, the parties had entered into a 1997 property settlement agreement that gave the ex-wife all of the ex-husband’s Tier II Railroad Retirement Benefits “through the date of the divorce.” A separate order was drafted for submission to the retirment agency in the form required by that agency, but the order left out the phrase “through the date of the divorce.” Predictably, when the husband applied for his benefits, he learned to his chagrin that the agency, relying on the order, had awarded the wife 100% of the Tier II without limitation. The ex-husband asked the chancellor to modify to correct the situation, and the ex-wife denied that the property division could be modified. The chancellor brushed aside both positions and invoked MRCP 60(a) to correct the clear discrepancy between the express terms of the parties’ agreement and the order. The COA affirmed.

The common thread in each of these cases is that the trial judge did what she or he deemed “just and proper under the circumstances” to fix the underlying problem. It’s a matter of substance over form.  



March 21, 2012 § 3 Comments

We’ve talked here before about the futility of filing an appeal from a judgment that disposes of fewer than all of the issues that were pled and tried, and does not include an MRCP 54(b) certification. 

The latest manifestation of the principle appeared in the COA case of Williams v. Claiborne County School District, et al., decided February 21, 2012. In that case, the school district complained in its cross-appeal that the trial judge erred by not granting it the $120,000 in damages it had asked for in its pleadings. Indeed, the chancellor did not even address the issue of damages.

Oops. On its own initiative (after having been alerted by the cross-appeal), the COA dismissed both the appeal and the cross-appeal because the judgment disposed of fewer than all the issues, and did not include an MRCP 54(b) certification by the judge, meaning that it was not a final, appealable judgment.

Another wasted trip to the COA. Think of those long, lonesome, solitary (albeit billable) hours working on briefs and record excerpts, on reply and rebuttal briefs, on research. Think of what the clients will say when they get the bills for all that time spent to produce nothing but a return to the starting line. Ouch.

As I’ve said before, if you feel that the judge has not addressed an issue so that you don’t have a final judgment, or if you’re in doubt about it, file a timely MRCP 59 or 60 motion and raise the point so that the judge can either (a) address the missing issue, or (b) schedule a trial on the missing point, or (c) amend the judgment to add a 54(b) certification.


January 30, 2012 § 1 Comment

We’ve talked here before about whether you should make a record when you present an uncontested divorce.

In Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008), the COA held that an appellant who had failed to answer, defend or otherwise appear in the case could not raise for the first time on appeal issues about the sufficiency of the chancellor’s findings.

So what happens when the defaulted party does appear via a timely motion under MRCP 59, say, and asks the chancellor to set aside the judgment because she failed to make the required findings of fact under Ferguson, or Armstrong, or any of the other required checklists of factors? That’s what happened in the case of Lee v. Lee in the chancery court of Desoto County. Corey Lee showed up late for his divorce trial, popping in just as the chancellor was in the middle of his opinion dividing the marital estate, awarding custody, and assessing child support. Corey enlisted a lawyer who filed a timely MRCP 59 motion.

In his motion, Corey challenged the judge’s ruling on the basis that it did not address the Ferguson factors for equitable distribution. The judgment did state that it was based on consideration of the Ferguson factors, but did not spell out the evidence relied on as to each applicable factor as required under Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss. 1997).

On appeal the COA affirmed, citing Luse.

The Supreme Court granted cert, and in an opinion rendered January 26, 2012, in Lee v. Lee, Justice Dickinson said for the court:

¶7. A divorce judgment entered when a party fails to appear is “a special kind of default judgment.” [Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss. 1988)]. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions under Rules 52, 59, or 60 of the Mississippi Rules of Civil Procedure. [Mayoza, 548-49.] Although Corey filed a Rule 59 motion, the Court of Appeals held that the motion did not address the equitable-distribution issue; and, therefore, the issue was procedurally barred.

¶8. In its holding, the Court of Appeals relied on Luse v. Luse, in which, John Luse neither answered his wife’s complaint for divorce nor appeared at the divorce hearing. The chancellor granted John’s wife a divorce and awarded her ownership of marital property. John never filed a timely post-trial motion challenging the property division, so he first raised the issue on appeal, and the Court of Appeals properly held that John’s claim was procedurally barred.

¶9. But unlike John Luse, Corey Lee raised the issue before the chancellor. In his Rule 59 motion, Corey argued that the division of martial property was inequitable. At the hearing on the motion, Corey’s attorney specifically argued that the chancellor had failed to make findings of fact and conclusions of law, as required by Ferguson. Therefore, Corey is not procedurally barred from raising this issue on appeal.

* * *

¶13. By failing to appear at the hearing, Corey forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. Corey did so in his Rule 59 motion and at the hearing following it. The fact that Corey failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

The decision reversed the COA and the chancellor, setting aside the divorce.

So how do you avoid the same trap the next time you present an uncontested divorce? My suggestion is that you make a point of putting on proof of each factor, and prepare proposed findings of fact and conclusions of fact, incorporating them in the judgment you hand to the chancellor at the conclusion of the hearing. Make specific findings as to each checklist factor that applies in your case. If you are asking for equitable distribution, address the Ferguson factors. For custody, address the Albright factors. For alimony, address Armstrong. And so on through as many as apply in your case. You know in advance (or you should know) what your client’s testimony will be on each point, so simply wrap it up into a neat package for the judge. In the alternative, you lazy lawyers can appear and just put on the proof and ask the chancellor to do it. If the chancellor is in a benevolent mood, he or she might do it for you. Or you may be dispatched to do it yourself and come back another time.


October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal.  Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars.  Aha!  You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait.  How are you going to get this before the court?  MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry.  MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.   

That’s where Trim comes in.  By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud.  That’s because MRCP Rule 60 expressly states:  “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery.  If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago.  The client may well question why you never went over the statement with him and counseled him about what to include and what not to include.  “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.” 

In case you think this is the kind of thing that happens to somebody else somewhere else, think again.  Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court.  It can happen to you.

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