Enforcing the Temporary Order

February 19, 2014 § Leave a comment

Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?

It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”

So … what are you going to do about it?

In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:

¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).

You have several ways to approach enforcement of temporary orders:

  • You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
  • With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
  • Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.

The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.

FINALLY, THE FINAL WORD ON FINALITY

December 13, 2011 § 7 Comments

It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.

A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).

MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment.  Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).

MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.

Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).

MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.

After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.

Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995)  and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).

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