Finch v. Finch
| Docket Number: | 2011-CA-00306-COA Linked Case(s): 2011-CA-00306-COA ; 2011-CT-00306-SCT ; 2011-CT-00306-SCT ; 2011-CT-00306-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2012 Opinion Author: Ishee, J. Holding: DA-Affirmed; CA-Dismissed |
|
| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Sua sponte review of final judgment - M.R.C.P. 60(b) - Fraud upon the court - Rule 8.05 financial disclosure - Retroactive reduction - Alimony - Child support - Unclean hands - Enforcement motion - Attorney’s fees - Emancipation - M.R.A.P. 4(a) - M.R.A.P. 4(c) - M.R.A.P. 4(g) - Cross-appeal - Jurisdiction of appellate court Judge(s) Concurring: Lee, C.J., Griffis, P.J., Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Barnes and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 02-16-2011 Appealed from: Lamar County Chancery Court Judge: Deborah A. Gambrell Disposition: REDUCED AMOUNT OF ALIMONY AND CHILD SUPPORT OWED BY APPELLEE Case Number: 2008-0138-GN-DJG |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Rosemary Finch |
ALFRED J. LECHNER JR.
JAMES LAWTON ROBERTSON |
|
|
| Appellee: | Stewart Finch | S. CHRISTOPHER FARRIS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Divorce: Irreconcilable differences - Sua sponte review of final judgment - M.R.C.P. 60(b) - Fraud upon the court - Rule 8.05 financial disclosure - Retroactive reduction - Alimony - Child support - Unclean hands - Enforcement motion - Attorney’s fees - Emancipation - M.R.A.P. 4(a) - M.R.A.P. 4(c) - M.R.A.P. 4(g) - Cross-appeal - Jurisdiction of appellate court |
| Summary of the Facts: | In 2009, Rosemary and Stewart Finch were granted a divorce based on irreconcilable differences. The parties had agreed to the amount of child support Stewart would pay, and the chancery court awarded Rosemary periodic monthly alimony. The parties’ debts and assets were also distributed. Thereafter, Rosemary filed a petition for contempt, and Stewart filed a counter-petition for contempt and modification. The court found that Rosemary had committed a fraud upon the court in her Uniform Chancery Court Rule 8.05 financial statement, and that the parties’ minor child voluntarily became estranged from Stewart. The chancery court reduced Stewart’s monthly alimony and child support obligations. Rosemary appeals, and Stewart cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Sua sponte review of final judgment Rosemary argues that the chancery court erred by sua sponte reviewing a final, unappealable judgment. While Stewart did not file an M.R.C.P. 60(b) motion, he did allege fraud in the petition for contempt and modification. Furthermore, the chancery court is vested with broad equitable powers to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief under Rule 60(b) and may do so on its own motion. Thus, the court did not err in this case. Issue 2: Fraud Rosemary argues that the court erred in finding that she committed fraud upon the court based on her Rule 8.05 financial statement. She also argues that even if the chancellor could conclude she committed fraud, it was fraud upon the individual, for which a six-month time limit applies, not fraud upon the court. There is no time limitation in Rule 60(b) for fraud upon the court. The Mississippi Supreme Court has held that a party’s intentional filing of a substantially false Rule 8.05 financial disclosure statement constitutes a fraud on the court. In her Rule 8.05 financial disclosure, Rosemary failed to disclose a number of credit accounts totaling $24,774.62. Rosemary also failed to disclose the $728 she received each month in Social Security and all of the bank accounts to which she had access. Although she admitted that she handled all of the financial matters and paid all of the credit-card bills, she asserts that Stewart should have known about the additional credit cards. However, she failed to prove that he did. Thus, the chancery court did not abuse its discretion in finding Rosemary filed a substantially false Rule 8.05 financial statement and committed a fraud upon the court. Issue 3: Retroactive reduction Rosemary argues the chancery court erred by retroactively reducing the amount of alimony and child support due, because the payments became vested when due and could not be modified. The chancellor reduced the alimony payments from $4,000 per month to $2,000 per month, and ordered that Stewart receive credit for any alimony payments exceeding $2,000 since November 2010. The amount of monthly child support was also modified from $1,300 per month to $900 per month, retroactively effective beginning August 2010. If the chancery court has determined that a downward modification of alimony is appropriate, the chancellor has the discretionary authority to order the modification retroactive to the date on which the petition to modify was filed. Support obligations to the child vest in the child as they accrue, and no court may thereafter modify or forgive them if they are not paid. Because the chancery court found Rosemary committed fraud upon the court in her Rule 8.05 financial statement, the parties were relieved from the final divorce decree. As such, the chancellor was free to modify the amount of alimony and child support Stewart was required to pay without finding a material change in circumstances. Issue 4: Unclean hands Rosemary argues that Stewart had unclean hands. The doctrine of unclean hands prevents a complainant from petitioning the court to modify an original decree absent proof that he or she has fully performed under the terms of the original decree or, in the alternative, that full performance has been wholly impossible. Rosemary claims that Stewart had not paid child support since August 2010 and that he paid alimony within the month due rather than on the first day of each month. While it is true that Stewart had unclean hands such that it would be an abuse of discretion to modify the divorce decree, the original divorce decree was set aside due to fraud upon the court. Thus, this issue is without merit. Issue 5: Enforcement motion Rosemary argues the chancery court erred by failing to grant her enforcement motion. However, the chancellor properly found Rosemary committed a fraud upon the court, which had the effect of vacating the original divorce decree. Therefore, there was no final judgment to enforce. Issue 6: Attorney’s fees Rosemary argues that she is entitled to reasonable attorney’s fees and litigation costs beginning with her 2009 petition through the present appeal. The chancery court found that because both parties had been in contempt for violating the judgment of divorce on at least one occasion during the litigation, each party was responsible for his or her own attorney’s fees. This was not an abuse of discretion. Issue 7: Emancipation On cross-appeal, Stewart argues the chancery court erred by failing to fully emancipate the couple’s son. M.R.A.P. 4(a) provides that a notice of appeal must be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from. Under M.R.A.P. 4(c), another party may then file a notice of appeal within fourteen days of that notice, or within the thirty days from the judgment appealed from, whichever is later. Rosemary filed her notice of appeal on February 24, 2011, but Stewart did not file his notice of cross-appeal until June 10, 2011. Thus, he failed to timely file his cross-appeal. On April 11, 2011, Stewart filed a motion to reopen pursuant to M.R.C.P. 60(b)(3). Rosemary also filed a Rule 60(b) motion to reopen to supplement the record. Stewart asked, among other things, that the time to file a cross-appeal be reopened. Thus, under M.R.A.P. 4(g), Stewart met the deadline to seek an extension of time to file a cross-appeal. However, the chancellor failed to rule on Stewart’s request for the time to file a cross-appeal to be reopened. Therefore, the appellate court is without jurisdiction to consider the cross-appeal. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
