Luse v. Luse


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Docket Number: 2007-CA-00171-COA
Linked Case(s): 2007-CA-00171-COA
Court of Appeals: Opinion Link
Opinion Date: 07-01-2008
Opinion Author: BARNES, J.
Holding: Affirmed
Additional Case Information: Topic: Divorce: Desertion - Uncontested divorce - Section 93-5-17 - M.R.C.P. 55(e) - Transcript of proceedings - M.R.A.P. 10(c) - M.R.C.P. 60 - Findings of fact - 8.05 financial disclosure form
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS
Trial Court: Date of Trial Judgment: 12-29-2006
Appealed from: Hinds County Chancery Court
Judge: Patricia D. Wise
Disposition: ENTERED FINAL JUDGMENT OF DIVORCE AND PROPERTY DISTRIBUTION
Case Number: G2006-2092 W/4
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: JOHN O’NEAL LUSE




 BRUCE W. BURTON



  
  • Appellant #1 Brief
  • Supplemental Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: LENDER LUSE RICHARD R. GRINDSTAFF  
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    Topic: Divorce: Desertion - Uncontested divorce - Section 93-5-17 - M.R.C.P. 55(e) - Transcript of proceedings - M.R.A.P. 10(c) - M.R.C.P. 60 - Findings of fact - 8.05 financial disclosure form
    Summary of the Facts: Lender Luse was granted a divorce from John Luse on the ground of desertion, after he failed to answer the complaint and failed to attend the hearing on the matter. The chancery court also awarded the real property in Hinds and Holmes County to Mrs. Luse. Mr. Luse appeals.
    Summary of Opinion Analysis: Mr. Luse argues that the divorce proceedings were not conducted in open court pursuant to Mississippi statutory law; thus, the divorce is void. He also argues that section 93-5-17(1) requires a transcribed record to be created in an uncontested divorce. Pursuant to section 93-5-7 and M.R.C.P. 55(e), the law of uncontested divorces is that no judgment by default may be entered in a divorce case, but uncontested divorces are proper if the claimant establishes his or her claim or right to relief by evidence in open court. The divorce complainant must prove the allegations of his or her complaint even when the defendant has failed to answer. There is no language within section 93-5-17 that requires a transcription of an uncontested divorce proceeding – only that sufficient and corroborated proof be presented. M.R.A.P. 10(c) addresses the procedure to be followed where there is no transcript of the proceedings. If there is any conflict as to what occurred at the hearing, the matter is submitted to the chancellor for decision. This procedure was not followed by Mr. Luse as neither he, nor his appellate counsel, was present at the divorce proceeding. In fact, Mr. Luse merely assumed and argued that no hearing had taken place. Under Rule 10(c), Mr. Luse should have tried to find out what happened in the proceeding, presented his understanding to the appellee, and submitted any conflict to the chancellor. In a supplemental record, the chancellor confirmed that Mrs. Luse presented testimony and corroborating evidence as required to prove her grounds for divorce and equitable distribution in open court. Mr. Luse argues that because he filed an M.R.C.P. 60 motion, the appellate court has jurisdiction to hear his argument even though it was never previously raised at the trial court level. While Mr. Luse did file a Rule 60 motion, he had already appealed and had not raised this issue at any other time before the chancery court. In fact, he had not responded in any manner to Mrs. Luse’s complaint until over one month after the final judgment was entered. Thus, the Court cannot consider the issue. Mr. Luse also argues that the chancellor erred in not making on-the-record findings of fact and conclusions of law regarding the equitable distribution of the marital property. Mr. Luse cannot now complain of matters he failed to defend in the chancery court. In addition, there is a presumption that sufficient evidence was heard to sustain a decree once it has been entered, and no evidence was presented by Mr. Luse to counter this presumption of correctness. Mr. Luse also argues neither he nor Mrs. Luse filed an 8.05 financial disclosure form. Mr. Luse failed to defend this suit in the chancery court and is now attempting to do so on appeal, which is improper.


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