The Better Chancery Practice Blog

Should you make a record when presenting an uncontested divorce?  I usually leave it up to the lawyer.  If you’re making that decision, you should consider the COA decision in Simmons v. Simmons, rendered March 29, 2011.

In that case, the appellant failed to appear or defend, and his ex-wife went ahead and presented the case as an uncontested divorce.  The chancellor entered a judgment granting his ex-wife not only a divorce, but also the entire marital estate and attorney’s fees.  Joey presented several issues on appeal, one of them that his ex had failed to make a record, and as a result there is no evidence to support the chancellor’s award.

The COA opinion, written by Judge Roberts, cited Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008) for the proposition that there is nothing in MCA 93-5-17(1) that requires transcription of an uncontested divorce hearing, and there is a presumption that there is sufficient evidence to sustain a decree if one is entered by the chancellor.

It’s still up to you whether or not to make a record, but it may just be counterproductive to have one.  if you make a record, it seems that you are creating something for the other side to use as a target, and they just might hit the jackpot on a lucky Tuesday with the COA.  On the other hand, if you make a perfect record, in a child custody case, for example, you might seal off any attack.  What do you think?