Klein v. McIntyre
| Docket Number: | 2006-CP-01775-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-16-2007 Opinion Author: GRIFFIS, J. Holding: Dismissed and Remanded |
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| Additional Case Information: |
Topic: Modification of custody - Consent judgments - M.R.C.P. 60(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-11-2006 Appealed from: Amite County Chancery Court Judge: Debbra K. Halford Disposition: MODIFICATION OF CHILD CUSTODY Case Number: 2004-207 |
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| Party Name: | Attorney Name: | |||
| Appellant: | ALISON SUZANNE BASS KLEIN |
ALISON SUZANNE BASS KLEIN (PRO SE) |
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| Appellee: | MICHAEL RAY MCINTYRE, JR. | GARY L. HONEA |
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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. |
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| Topic: | Modification of custody - Consent judgments - M.R.C.P. 60(b) |
| Summary of the Facts: | When Alison Klein and Michael McIntyre, Jr. were divorced, Klein and McIntyre were awarded joint custody of their two children by their agreement which was incorporated into the divorce decree. After Klein remarried and moved to Louisiana, McIntyre filed a complaint to modify custody alleging that a substantial and material change in circumstances had occurred such that the joint custody arrangement was unworkable. The court entered an order concluding that a substantial and material change in circumstances has occurred and that custody should be modified and full custody granted to McIntyre. The order also set a visitation schedule. Although each attorney signed the order, Klein’s attorney hand wrote “Approved as to Form Only.” The chancellor entered a second order modifying the support owed and requiring each parent to pay one-half of the medical expenses and one-half of private school tuition and Klein to pay $200 per month in child support. Again, each attorney signed the order, but Klein’s attorney hand wrote “Approved as to Form Only.” Klein appeals. |
| Summary of Opinion Analysis: | Klein argues that the chancellor erred in entering the orders regarding custody and support because she did not agree to the content of those orders. Where the terms of agreement are not announced in open court and neither the party nor his attorney has signed the agreement, the consent judgment is void because there is no substantial evidence that an agreement ever existed. The first order in this case indicates that the parties’ agreement may have been announced in open court. However, there is no transcript of the hearing that indicated an agreement. No order was prepared at or about the time of the alleged agreement. Instead, the only order was executed seven months after the agreement. The order itself does not indicate Klein’s full agreement. The lack of Klein’s execution of the order and the limitation imposed by Klein’s counsel indicates that Klein did not fully and completely agree and consent to the entry of the order. Mississippi law permits a party to obtain relief from a consent judgment through M.R.C.P. 60(b). Such relief may only be granted if the judgment should be set aside for one of the grounds listed in Rule 60(b), such as fraud, misrepresentation, misconduct, accident or mistake. Klein’s notice of appeal must be construed as a motion for relief from an order under M.R.C.P. 60. Only after the chancellor considers this matter under Rule 60 may the appellate court consider the merits of Klein’s appeal. In addition, the evidence to support the additional factual and legal conclusions in the second order are not present in the limited record on appeal. If, as it appears, the order was not the result of the parties’ agreement, the chancellor was required to make specific findings of fact to support the modification of a child support award. Therefore, the appeal is dismissed and remanded to the chancery court for further proceedings. |
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