Cobb v. Cobb


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Docket Number: 2009-CA-00062-COA

Court of Appeals: Opinion Link
Opinion Date: 03-09-2010
Opinion Author: Myers, P.J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Irreconcilable differences - Jurisdiction - Statutory requirements - Section 93-5-2
Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 12-03-2008
Appealed from: LEE COUNTY CHANCERY COURT
Judge: John A. Hatcher
Disposition: DENIED HUSBAND’S MOTION TO SET ASIDE JUDGMENT OF DIVORCE
Case Number: 06-0595-41-H

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: L. DENNIS COBB




JAK MCGEE SMITH



 
  • Appellant #1 Brief
  • Appellant #2 Brief
  • Appellant #1 Reply Brief

  • Appellee: SHERYL JEAN COBB EDWIN HUGHES PRIEST  
    Appellee #2:  

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    Topic: Divorce: Irreconcilable differences - Jurisdiction - Statutory requirements - Section 93-5-2

    Summary of the Facts: Sheryl Cobb filed a complaint for divorce against her husband, L. Dennis Cobb. Sheryl’s complaint was grounded on habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. On the day set for trial on Sheryl’s complaint for divorce, the parties reached a settlement late that afternoon, after what was later described as protracted negotiation. The parties presented an agreed judgment of divorce on the grounds of irreconcilable differences to the chancellor, and it was entered as a final judgment of divorce that same day. Dennis filed a timely notice of appeal. The appeal, however, was ultimately dismissed for want of prosecution after Dennis failed to file a timely brief. Subsequently, Dennis filed a motion to set aside, alter, or amend the judgment of divorce, alleging that the divorce judgment was void because certain statutory requirements were not met. The court denied the motion, and Dennis appeals.

    Summary of Opinion Analysis: Issue 1: Jurisdiction Sheryl argues that the appellate court lacks jurisdiction to hear this appeal because Dennis’s prior direct appeal from the judgment of divorce was dismissed for want of prosecution. This appeal arose from Dennis’s motion to set aside the judgment of divorce as void. As to such motions, essentially, there can be no time limitation for relief from a void judgment as no amount of time or delay may cure a void judgment. Issue 2: Statutory requirements Dennis argues that the divorce judgment is void because the parties failed to execute a consent pursuant to section 93-5-2(3). This issue is without merit. Subsection (3) is, by its own terms, operative only where the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them. Under such circumstances subsection (3) allows the parties to nonetheless submit those issues they cannot agree upon to the court. In this case, it is clear that no issues were submitted to the chancellor. The record indicates that the judgment of divorce was entered pursuant to section 93-5-2(2). The proposed agreed order meets section 93-5-2(2)’s requirement of a written agreement. Dennis also argues that the divorce judgment is void because the chancellor failed to expressly recite that the agreed settlement was found to be “adequate and sufficient,” as required by section 93-5-2. While the chancellor made no express finding that the settlement was “adequate and sufficient,” an express finding is not required. Dennis also argues that the divorce judgment is void because he did not formally withdraw his initial denial of Sheryl’s assertion in her complaint that she was entitled to a divorce on the grounds of irreconcilable differences. It is evident that no formal withdrawal of the contests or denials occurred prior to the entry of divorce in this case. The agreed judgment of divorce did provide, however, that “[a]ll further relief herein requested by either party is denied.” The record clearly shows that Dennis gave actual consent to a divorce on the grounds of irreconcilable differences. Dennis did not argue a failure or defect of his actual consent to the divorce before the chancellor, and he has not argued it on appeal; his position was and is that the failure to formally withdraw the contests and denials, in and of itself, is reversible error. As the supreme court has held, more is required. Because the record shows mutual consent of the parties to divorce, Dennis’s substantive rights are not at issue, and therefore any failure to formally withdraw contests or denials was harmless error. Dennis also argues that the agreed judgment of divorce is void because it incorrectly recites that the parties were present “and giving testimony.” As the chancellor correctly found, the language was “mere surplusage” and any error is harmless.


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