Wade v. Wade


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Docket Number: 2006-CA-01504-COA
Linked Case(s): 2006-CA-01504-SCT
Court of Appeals: Opinion Link
Opinion Date: 10-30-2007
Opinion Author: CARLTON, J.
Holding: Affirmed
Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - M.R.C.P. 81(a)(9) - Section 93-5-2(1) - M.R.A.P 55(e) - M.R.C.P. 59 - Child custody
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS
Trial Court: Date of Trial Judgment: 08-03-2006
Appealed from: Forrest County Chancery Court
Judge: James H.C. Thomas, Jr.
Disposition: CUSTODY OF MINOR CHILD AWARDED, MARITAL ASSETS DIVIDED
Case Number: 05-0710-GN-TH
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: FRANKIE WADE, JR.




 CHARLES E. LAWRENCE



  
  • Appellant #1 Brief
    		•
    Appellee: KATINA WADE KATINA WADE (PRO SE)  
    Synopsis provided by:

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    Topic: Divorce: Habitual cruel and inhuman treatment - M.R.C.P. 81(a)(9) - Section 93-5-2(1) - M.R.A.P 55(e) - M.R.C.P. 59 - Child custody
    Summary of the Facts: Frankie Wade, Jr. filed a complaint seeking a divorce from Katina Wade. When no appearance or response was made within thirty days by either Katina or an attorney acting on her behalf, Frankie obtained a final judgment of divorce on the ground of cruel and inhuman treatment. The court awarded joint legal custody and primary physical custody of the couple’s child to Frankie. Katina was ordered to pay $200 per month in child support, provide health insurance for the child and maintain a life insurance policy upon herself in the amount of $100,000 with the child named as beneficiary. Katina was also ordered to pay for the college and education expenses of the child in the event they became necessary. The court held the issue of division of marital property in abeyance. Katina, upon receiving a copy of the judgment of divorce, filed a motion to set aside the judgment and for a new trial. The court entered an order granting Katina’s motion in part, finding that the prior judgment granting divorce would not be set aside, but the issue of custody would be revisited based on the Albright factors during the hearing on the division of marital assets. Following the hearing, the court entered an order granting physical custody of the child to Katina and divided the marital property. Frankie appeals.
    Summary of Opinion Analysis: Frankie argues that the chancellor erred in reopening the issue of child custody, because the chancellor failed to make a finding that it was amending the judgment due to a mistake in law or fact or that injustice would result if the judgment were allowed to stand. Under M.R.C.P. 81(a)(9), the Mississippi Rules of Civil Procedure govern to the extent that the divorce statutes are silent or not inconsistent. Under section 93-5-2(1) and M.R.A.P 55(e), an uncontested divorce must be heard in open court and the plaintiff is required to establish his claims with evidence despite the defendant’s failure to participate in the action. Since the procedure for setting aside or reconsideration of an uncontested divorce is not provided for in our divorce statutes, Katina’s motion is governed by M.R.C.P. 59, as it was filed within ten days of the entry of judgment. Under Rule 59, a court is authorized to reopen a judgment, take additional testimony, make new findings of fact and conclusions, and enter a new judgment as to all or part of a verdict as justice requires. The chancellor acted within his discretion in granting Katina’s Rule 59 motion. It is clear from the record that the chancellor granted Katina’s motion and amended the judgment based on a mistake in law, i.e., that the original child custody determination was made without a consideration of the applicable Albright factors. Additionally, the interest of justice permitted the chancellor, in his discretion, to grant the motion and hear additional testimony to ensure that the best interest of the child was met. Frankie also argues that the chancellor erred when he held in abeyance a decision on the division of marital property pending the filing of an updated financial declaration but cites no authority to support this contention. Therefore, the issue is barred on appeal.


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