Johnson v. Johnson
| Docket Number: | 2008-CA-00230-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-03-2009 Opinion Author: BARNES, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Written consent - Withdrawal of fault-based complaint - Section 93-5-2(3) & (5) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 11-20-2007 Appealed from: WASHINGTON COUNTY CHANCERY COURT Judge: Jane R. Weathersby Disposition: DIVORCE GRANTED ON GROUND OF IRRECONCILABLE DIFFERENCES AND PHYSICAL CUSTODY OF MINOR CHILD AWARDED TO IRA JOHNSON Case Number: 06-000920 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | WANDA JOHNSON |
MINOR F. BUCHANAN |
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| Appellee: | IRA JOHNSON, JR. | MICHAEL WAYNE BOYD |
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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: | Divorce: Irreconcilable differences - Written consent - Withdrawal of fault-based complaint - Section 93-5-2(3) & (5) |
| Summary of the Facts: | Wanda Johnson and Ira Johnson, Jr. were granted a divorce on the ground of irreconcilable differences. The chancellor awarded sole physical custody of the couple’s minor child to Ira. Wanda appeals. |
| Summary of Opinion Analysis: | Wanda argues that the chancellor’s judgment of divorce was erroneous based on the fact that the parties had never executed a written agreement for an irreconcilable differences divorce, had not withdrawn the fault grounds, and had not executed a consent for the chancellor to rule on contested matters. When a divorce is sought on the ground of irreconcilable differences, the parties shall enter a written agreement resolving matters of property division, which must then be approved by the chancellor. Subsection (3) of section 93-5-2 provides, however, that if a couple is unable to agree on provisions related to custody or property rights, they may consent to a divorce on the ground of irreconcilable differences and have the court decide the issues upon which they cannot agree. The consent must be in writing and signed by both parties; must state that the parties voluntarily consent to permit the court to decide the issues upon which the parties cannot agree; must specifically set forth the issues upon which the parties are unable to agree; and must state that the parties understand that the decision of the court shall be a binding and lawful judgment. Subsection (5) of section 93-5-2, which is to be read in conjunction with subsection (3), mandates that a contest or denial be withdrawn or canceled, by leave and order of the court, by the party who filed the contest or denial. In the present case, the parties failed to comply with either subsection (3) or subsection (5). There was discussion between counsel at trial which revealed that no written consent was ever entered into by the parties. Additionally, Ira never sought leave of the court to withdraw his fault-based complaint. In fact, Ira has filed a “Confession of Appeal” in which he agrees that the statutory filing requirements were not met at trial, and that Wanda is entitled to a new trial. |
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